The Law Of The Jungle
Inheritance, succession planning and powers of attorney – trust in me
Mowgli is the central character in the story of The Jungle Book. We meet him as a baby who is lost in the wild and who is taken in by a family of wolves with whom he spends the first decade of his childhood. However, as the wolf ‘parents’ age, they become concerned for Mowgli’s welfare without the protection of his pack. Mowgli is sent away and encounters a number of fascinating animal characters on his journey out of the jungle.
But what of the wolf family he left behind? We are told that the parents are old and thinking about the future. Let’s suspend our disbelief and imagine that Mr and Mrs Wolf are humans (and that the legal jurisdiction applicable is that of England and Wales) and that their fondness for Mowgli leads them to consider benefitting him in their Will. Certainly, this can be achieved by putting in place a valid Will naming Mowgli as a beneficiary. Without the Will in place, Mowgli would not be entitled to anything from Mr and Mrs Wolf’s estate because the rules of intestacy (which apply when a person dies without leaving a valid Will) have a strict application to prescribed family members and Mowgli is not a child of the family nor, as far as we know, an adopted child of the family. The position would be different if Mowgli had been adopted but even then it is much better to have a Will in place to set out wishes as to inheritance clearly.
So, as an extension of The Jungle Book story, the wolf parents later die and Mowgli, now an adult, inherits some of their wealth. Mowgli is considering his own estate and succession plans. He has struggled with trust throughout his childhood years as a result, in part, to his friends letting him down: Bagheera was strict and focussed on getting Mowgli out of the jungle and failed to listen to Mowgli’s protests; Kaa pretended to befriend Mowgli with the rather sinister objective of eating him for lunch; and Baloo, who accepted Mowgli’s wishes to stay in the jungle, failed to identify the risks to Mowgli’s safety leading to Mowgli getting into further scrapes, not to mention when he was kidnapped by the orangutan company. Mowgli needs advice from an independent, professional expert. It may be that Mowgli feels very strongly about who he would wish to benefit under his own Will. However, his trust issues may make it more difficult for him to decide on who to appoint as executor (i.e. the person responsible for carrying out his wishes after he has died). A conversation about appointing a professional executor would be sensible in these circumstances. Many people prefer to use a professional executor, such as a solicitor. The benefits of using a solicitor as executor include:
- Professional knowledge and expertise in estate administration;
- Takes stress away from loved ones at a difficult time; and
- They take on liability for the estate being administered correctly.
Powers of Attorney
Mowgli may wish to consider putting in place Lasting Powers of Attorney at the same time as making his Will. Lasting Powers of Attorney will allow Mowgli to appoint his choice of person(s) to make decisions for him if he lacks the capacity to make those decisions for himself. There are two types of Lasting Power of Attorney: Property & Financial Affairs and Health & Welfare. Again, Mowgli may have trouble in deciding who to appoint as attorney if he feels unable to trust the people around him and so the appointment of a professional attorney (e.g. a Solicitor) for Property & Financial Affairs is also an option.
Parenting and parenthood – the bare necessities
Parents comes in all shapes and sizes and in the context of normal everyday life this may not matter too much. Mowgli experiences several different parental figures during his adventures, not to mention varying styles of parenting!
Let’s look at parental status first. In many important situations, the question of legal rights and obligations needs to be determined and then it may matter who is a legal parent, who is a biological parent, who is a social or psychological parent and who can exercise parental responsibility for a child.
However, just because someone is legally a parent it doesn’t mean they have parental responsibility for the child in the eyes of the law. Biology doesn’t always determine who the legal parent is and even if someone is not legally or biologically a parent, they may be regarded as a psychological parent.
A child can have up to two legal parents.
- Only a legal parent can be named on a child’s birth certificate.
- A legal parent has financial responsibility for the child.
- Legal parenthood can have an impact on inheritance rights.
- A legal parent has an automatic right to apply to court for an order in relation to the child.
- Being identified as a legal parent can hold emotional importance for the people raising the child and the child itself.
A mother who has carried the child during pregnancy will always be the child’s legal parent unless this is changed by court order due to surrogacy or adoption.
The other legal parent depends on the circumstances around conception, marital/civil partnership status and subsequent steps that may have been taken after the birth of the child to formalise the legal status. It can be the case that an individual assumes or believes that they have a status that in fact they do not have.
Parental responsibility (PR) is all the rights, duties and responsibilities that a parent has towards their child and includes the right to be involved in major decisions in the child’s life such as which school they will attend, whether they can move abroad and what religion, if any, they will practice.
The birth mother will automatically have PR for the child. The father will also have PR, if he is married to the mother or is named on the child’s birth certificate. If that is not the case, a biological father may acquire PR by agreement with the mother or court order. Not all biological fathers will have PR, but they may still be a legal parent with a financial responsibility towards the child.
Other people can acquire PR for a child in certain circumstances, including stepparents or others who have a major role in caring for a child. There is no limit to the number of people who can hold PR.
We don’t know much about Mowgli’s birth parents, but for many people, the “norm” is for a mother and father to be the biological and gestational parents of their children – ie the child was conceived from their genetic material and the mother carried the child until birth – and these are also the legal parents.
There can be various permutations as a result of assisted reproduction. There may be a sperm or egg donor (or both). The child may be carried by a surrogate despite biologically being the child of one or both of the parents who ultimately care for it.
Recent developments mean that from the age of 18, children who were born following assisted reproduction where there was a donor can find out more about that individual. The donor will not however be the child’s legal parent (assuming the process took place in a clinic) and they will not have any financial responsibility for the child unlike a legal parent.
In the case of surrogacy, a parental order will need to be made to mean that the woman who carried the child is not the child’s legal parent, and the legal parents are considered to be the parents who commissioned the surrogacy.
The only other way of completely extinguishing a parent’s legal parenthood is by adoption. When a child is adopted, their legal ties with their birth family are cut and the adoptive parents become the child’s legal parents. It isn’t clear if the wolves Raksha and Rama adopted Mowgli formally or whether this was more of an informal fostering arrangement, but had they adopted him legally then they would have taken on all of the responsibilities of parenthood that his birth parents would have had initially, and his birth parents would no longer have been his legal parents.
Social and psychological parents
Step-parents, foster parents and other adults who are important in a child’s life may take on the role of a psychological parent. The child looks to them to all intents and purposes as a parental figure and they may effectively be delegated some aspects of parental responsibility, even if they do not officially hold it. Bagheera and Baloo may have been psychological parents to Mowgli at times as they looked after him, ensured his physical needs were met and guided and protected him. Such individuals are recognised by the courts as having significant importance to the welfare of a child despite their lack of legal parental status.
When he is forced to leave his familiar family and his world is turned upside down, Mowgli finds himself “parented”, in a manner of speaking, by various different characters who each bring their own individual style of parenting.
The serious, strict disciplinarian Bagheera always has Mowgli's best interests at heart but perhaps lacks empathy and understanding of Mowgli's youthful enthusiasm, and consequently Mowgli tends to rebel against his tight boundaries.
Meanwhile the relaxed and fun Baloo takes a more laissez-faire approach. He builds a friendship with Mowgli but then finds it hard to exert discipline and get Mowgli to do what he knows deep down to be the right thing.
Both Baloo and Bagheera love Mowgli and want to protect him in their own way, although they may be dismissive of each other's approach. Ultimately they find that if they both learn a little from each other and work together they will be more successful in taking care of Mowgli.
When parents separate they can struggle with differences in approach that the other parent may have where previously when they were together these might have complemented each other because they worked together.
A parent who, following separation, feels that they get less time with their child during the working week may feel excluded from the child’s main life and interests and under pressure to provide fun and treats when they can spend time with them to make up for this absence. On the other hand the parent who has to deal with weekday homework, the daily school run, general routine and discipline may envy the other parent the luxury of being the fun parent, and feel unfairly burdened with responsibility.
After or during separation it can be very difficult to communicate how this feels and to see the other parent’s point of view. Court proceedings rarely result in better relationships between parents - usually the opposite. Unless there is no other option and agreement is unachievable it is generally preferable to avoid court. It is a blunt tool and the courts are not interested in micromanaging parenting arrangements. Often neither parent feels particularly happy with the outcome.
Undoubtedly there are some situations which make court inevitable such as for example where there is a risk of harm to the child - perhaps (without intending to trivialise what can be very concerning) one parent’s approach is more akin to that of King Louis, or they are unable to protect him from the likes of Kaa!
Where there is any prospect of agreement or compromise various methods non-court methods can be tried. Mediation can take different forms. If parents can sit together in a room then traditional mediation can be extremely constructive in promoting communication and facilitating agreement. But even if parents cannot do that, shuttle mediation where the mediator moves between the parties in separate rooms, can be very effective. Hybrid mediation involves lawyers supporting their clients in mediation and has also demonstrated very successful results.
Child inclusive mediation when the child is a little older can work very well to enable the child to feel heard and to communicate some of their views to the parents in an impartial way. The mediator will meet the child separately and only pass on to the parents as much as the child is happy for them to say.
Parenting coordination is similar to mediation but the parenting coordinator can make a decision for the parties in some circumstances. Some families may benefit from family therapy, to work to repair damaged relationships.
Negotiation between solicitors can help start to build relationships between parents and set out more detailed arrangements and principles on which parties agree which the court would not be prepared to get involved with. Family law solicitors who are members of Resolution, as we are, commit to a code of practice which includes taking a non-confrontational approach and seeking to ensure the needs of any children are prioritised when a relationship breaks down. A family solicitor will be able to advise of the different routes available to resolving disputes and support you through your chosen process.