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Legal Considerations For Older Parents

Date: November 18th, 2019 - Written by: Brookman Solicitors


An Indian woman has given birth to twins at the age of 74. The new mother has described it as the happiest time of her life. She and her 82 year-old husband have spent years living with the stigma attached to childlessness that still exists in their village in the state of Andhra Pradesh. In 2015 another Indian woman gave birth in her 70s and more than a decade ago a British women aged 59 became the oldest women to give birth naturally.

The phenomenon of pregnancy at such an advanced age is relatively rare. More common is the number of births to women over 50. In 2018 the Office for National Statistics reported that the number of women giving birth in their 50s had quadrupled in two decades. The same set of data showed that the only age group in which pregnancies were on the rise was among the over 40s.

Whatever the sociological reasons for older pregnancies, from a family law perspective having children later does raise some fundamental issues for parents, the wider family and on occasion the family courts. Chief among these considerations is what should happen if one or both parents die before the child reaches the age of 18.


Guardianship When One Parent Dies

Parents of young children should always make a will appointing appropriate guardians. But a guardianship clause in a will only takes effect if both parents die. If one parent survives and he or she has parental responsibility they will look after the child. The law states that mothers have parental responsibility automatically. A father married to the mother when the child is born or who is registered on the birth certificate also has parental responsibility. It’s possible for someone to apply for parental responsibility if they do not have it by operation of law.

Older parents may sometimes think that if they were to die the other parent would be an unsuitable sole guardian for their child. In these circumstances an explanation of concerns should be set out in writing so that they can be referred to in any future court proceedings For example if other family members wish to apply for a special guardianship order to assume guardianship instead of a surviving parent.


What If Both Parents Die?

A child must have legal guardianship until the age of 18. For older parents it’s essential to make detailed guardianship provisions in a will. Such a clause will give you the peace of mind that your children will be looked after by someone familiar. It will also ensure that major decisions – about education for example – will be made by someone whose judgment you trust.

If you don’t appoint guardians the situation for your surviving children is likely to be uncertain, at least for a time. And this can only increase insecurity at a time when your children will be particularly vulnerable coming to terms with the loss of their parents. Of course there may be family members or friends ready to care for them in the short term. But courts will want to assess those arrangements at some point and to formalise them in a care or supervision order.


Contact Us

If you are affected by any of the issues we have raised please call us for further advice on 44 (0) 20 7430 8470 or contact us online.


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