Wilson Browne Discusses… Having A Baby

Parental Responsibility means that you are entitled to be involved in decisions about aspects of your child’s life.  This includes, for example, their education, religion, health and any medical treatment, holidays, and changing their names. By law, all mothers automatically acquire Parental Responsibility at the point of birth.  However, fathers do not have this automatic entitlement to Parental Responsibility.

If the father is married to the mother at the time of the birth of the child, the father automatically acquires Parental Responsibility at the point of the child’s birth, like the mother.  However, if the father is not married to the mother at the point of birth, the father must make sure that he is registered on the birth certificate to acquire Parental Responsibility.

If he is not registered on the child’s birth certificate, the father will need to make a separate court application for Parental Responsibility, called a ‘Parental Responsibility Order’ or request the mother sign a Parental Responsibility Agreement.  This is a legal agreement between the child’s mother and the unmarried father agreeing to provide the father with Parental Responsibility for the child, which is signed voluntarily by them both, however must also then be signed and witnessed by a Justice’s Clerk or Court Officer and filed at the Family Division of the High Court.  Without doing the latter, the document will not be legally binding.

If you are having a child, but are separated from the child’s parent, you may need to consider contact arrangements, namely when each of you will spend time with the child. You may be able to agree these arrangements amicably between you both, and therefore require no external support. However, if you are unable to reach an agreement, you could consider attending mediation to discuss matters relating to the child. A mediator is an independent third party trained to help parties communicate and reach agreements. This can be an amicable, cost and time effective route to reach an agreement about arrangements for the child moving forward, the agreed terms of which will be recorded in a Memorandum of Understanding for you to refer to.

However, if you are unable to reach an agreement and mediation is not successful, you may need to consider making an application to the Family Court for a Child Arrangements Order which will specify when the child will spend time with you both. The Court will determine what is in the child’s best interests, considering the Welfare Checklist found in the Children Act 1989.

The parental responsibility you have for your child will be in place until they are 18 years of age.  If your child suffers from any mental incapacity issues your ability as a parent to make decisions in relation to their property and affairs and their health and welfare will change when they reach 18.  This can be very difficult and challenging for a parent.

If you do have a child with learning difficulties or other vulnerabilities they should consider whether making a power of attorney is appropriate.  They can only do this with capacity after the reach the age of 18 years.  If they do not have capacity to do so then you could consider making an application to the Court of Protection to continue making decisions on their behalf.

Consider whether trusts may be suitable to meet the needs of any vulnerable children.

From a conveyancing point of view, very little needs to be considered, though it would certainly be worth considering how you will meet your mortgage repayments if you are taking a break from work, depending upon the terms of your mortgage, it may be possible to take a payment holiday.

In the future, be aware that adult children will be classed by mortgage lenders as “occupiers”. If you purchase a new home with the assistance of a mortgage they will need to sign an occupiers consent form to confirm that they hold no interest in the property that will rank above that of the mortgage lender. This will apply to children aged 17 or over.

When considering your Will, there are a few things to think about. Firstly, who would you want to look after your child/children if both yourself and the other parent has died? It is worth considering who you would wish to appoint as guardian of the children and how you would like to provide for that child financially upon your death.

If you were to pass away before any of your children were to attain a majority (reach the age of 18) and you had left your Estate to them, then your Estate falls into what is known as a “Bare Trust”. Simply put, this means that your Executors will be responsible for investing the cash value of your Estate for the benefit of your children until they attain such majority.

The Standard Provisions of the Society of Trust and Estate Practitioners are often incorporated into any Will drafted in recent times and these provisions allow for the power of advancement and powers of maintenance for the benefit of minor children (amongst many other powers granted to your Executors). This will allow your Executors to provide for your children during their minority and will enable your Guardians to make any legitimate requests for funds to the Executors. It is therefore very important that you consider who your Executors and Guardians are very careful. Do you trust them? Do you feel they will make any decisions in the best interests of your children? Do you think they should be the same people? These are all questions that a regulated lawyer should be asking you and advising you upon when taking your Will instructions.

It is also worth considering whether you feel the age of 18 is too young for your children to inherit and you can draft your Will in such a way that allows them to inherit at a later age such as 21 or 25.