Meet the Other Phone. Flexible and made to last.

Meet the Other Phone.
Flexible and made to last.

Buy now

Please or to access all these features

Legal matters

Mumsnet has not checked the qualifications of anyone posting here. If you have any legal concerns we suggest you consult a solicitor.

Can a solicitor advise

29 replies

Delbelleber · 13/07/2020 12:36

If a father not named on the birth certificate asks his solicitor to arrange a parental rights and responsibility agreement can the solicitor judge the situation for herself and advise the client not to proceed? Or would they have to follow through with the clients wishes without judgment?

OP posts:
maxelly · 13/07/2020 13:00

(disclaimer = not a solicitor myself so maybe totally incorrect in what I say)

It depends what you mean by 'judgement' - professional judgement or ethical/moral judgement? The former absolutely they should use, the latter not so much. A solicitor can certainly advise their client (fairly robustly) that an application is misjudged/unlikely to be successful and advise they go down a different path. That is very much their job - people often misunderstand the legal process or want to pursue fruitless applications out of spite or misguided belief it will get them what they want, and the solicitor should advise them of the likely outcome and the costs they will incur and try their best to steer them down a better path (although by 'better' that should be in their client's best interests and not necessarily those of any other involved party).

It's then up to the client (assuming the client has capacity of course) whether they pursue it or not, and unless there is something inherently unlawful or impossible to do what the client asks, the solicitor will usually follow through with making the application/writing the letter to the other party/whatever it is on their client's instructions, even if personally they wouldn't do that or think it's not wise - it isn't their role to make moral judgements on the value of the person's case so long as what they are asking for is within the scope of the law. So e.g. even a father who is obviously not safe to have direct contact with his children due to proven violence, drug use, abuse or whatever, might still properly have some very limited parental responsibilities/rights and it would be the duty of a solicitor to help him exercise those through the court if necessary, even if s/he finds the man morally repugnant personally. That's why people say the law is blind, because in a civilised society even the very least/worst members of our society should have access to their legal rights and someone to help them access those...

In this case there's nothing I'm aware of to stop the father trying to informally reach a parental agreement outside of court, indeed solicitors would usually advise this as a sensible first step to avoid the costs and hassle of going to court. Obviously if the mother of the child doesn't want him involved or doesn't acknowledge he's the father or whatever she won't necessarily agree to everything he wants or at all. She isn't under any obligation to agree or even to respond, just because a solicitor is involved. This is where then the court process and/or mediation would kick in, depending on the exact circumstances...

IfIWasAFlowerGrowingWildAndFre · 13/07/2020 13:12

Not a solicitor yet...

Professional judgement yes, if there is not a cat in hells chance of of a client getting the outcome they are after, then yes we can advise (advise is the key word here) against persuing a case. Whether or not they listen is a whole other story. My personal morals dont even come into it.

I'm guessing for what ever reason the mother has chosen to not involve the father, unfortunately the trend at the moment is for children to have some degree of contact with both parents (i have heard of utterly appalling, drug using, abusive parents still being allowed contact), so dont he surprised if the father is advised he should pursue this.

Loveinatimeofcovid · 13/07/2020 13:33

All solicitors are obliged to ensure that their clients are informed of the chances (roughly speaking) before taking them on. If it’s a hopeless case the client has to acknowledge this in the client care letter. If the client has been informed but wishes to proceed anyway it’s at the solicitor’s discretion whether they choose to take the case. Once they have been instructed then they essentially need to do what their client says (obviously there are circumstances when they wouldn’t).

Bluntness100 · 13/07/2020 13:38

Op it’s both. The solicitor can advise the client it’s unlikely to be successful but ultimately it’s the clients decision to proceed or not. The solicitor can then agree to proceed on the clients wishes or refuse the case, (but then why would they if they are getting Paid and its within their remit) . It’s not really about judgement, it’s about the Legal process.

Delbelleber · 13/07/2020 13:41

Not denying access but don't want to share parental rights. His solicitor has been instructed to ask for parental rights and responsibility agreement and I have replied with my reasons against this. I'm guessing the solicitor will now see the case is not as straight forward as she was led to believe and I wonder if she will advise him to be happy with what he's got in terms of access or if she will continue pushing for what he wants. I guess time will tell but its all I'm thinking about right now.
Thanks for replies

OP posts:
Bluntness100 · 13/07/2020 13:42

She will advise him on chances of success in her view, but will ultimately act on his wishes.

It’s not about the solicitor op. It’s about him. And what he wishes.

Delbelleber · 13/07/2020 13:45

Yes I understand that. But things will have now come to light that he hasn't thought through. I'm not going to go in to details.
Thanks for your responses.

OP posts:
prh47bridge · 13/07/2020 13:55

I'm struggling to think what things may have come to light that would affect this. If he goes ahead with an application for parental responsibility he is likely to get it unless you can show that giving him PR risks serious harm to your child.

Bluntness100 · 13/07/2020 14:00

Unless it’s come to light he’s not thr father I’m not sure what else could stop this op?

nowlook · 13/07/2020 15:22

I've seen parental responsibility restricted before (on the grounds of domestic abuse), but as PPs have said, unless he's not the father or there's a risk of harm (and in which case, why would you be OK with access), I'm scratching my head to think why the Court wouldn't make the order.

As solicitors, we don't have to agree with our clients or even like them. Some of the best clients from a billing perspective are those who plough ahead despite the advice they've received on prospects of success...

Familylawsolicitor · 13/07/2020 17:09

This reply has been deleted

Message withdrawn at poster's request.

nowlook · 13/07/2020 17:57

@Familylawsolicitor
I had a family where the applicant was the biological father of two of the four children of the mother. There had been domestic violence resulting in a conviction, to which all four children had been witness. Applicant still got PR (albeit restricted in certain areas) to the two biological children.

I'm reluctant to say it because I haven't practised in that area at all for over five years- and it wasn't my specialty even then, but there did seem to be a lot of mothers who felt that if they could adduce evidence that the man was a complete wanker, that would be enough to deny PR.

Bluntness100 · 13/07/2020 18:08

I assume the op means things have come to light that will make him rethink if he wishes parental responsibility. I’m also not really sure what that could be that might make him not want responsibility.

It’s not difficult though is it, you fill in a form and if the mother doesn’t agree apply for a court order which is about two hundred quid. The court can order a dna test if required to prove paternity.

Delbelleber · 13/07/2020 18:29

What it amounts to is he hasn't considered everything and if his solicitor explained to him he might change his mind about going forward with the parental rights agreement. It's not really possible for me to explain without just saying what I mean but it's not something I have said he has done that makes him look like the bad guy and hopefully the solicitor agrees, it's not like that.
I appreciate your responses to my question and sorry I can't be more open about what I'm talking about.

OP posts:
nowlook · 13/07/2020 18:34

Oh, sorry @Delbelleber. @Bluntness100's explanation puts a different spin on it.

I'm guessing he currently pays the sum total of fuck all at the moment (and has done that for years) or some such.

Best of luck with it all Flowers

Delbelleber · 13/07/2020 18:36

I didn't see your post there bluntness but yes you understand what I mean.

Will the solicitor have spoken to him today? When will I hear from her again?

OP posts:
Collaborate · 13/07/2020 19:24

For what it's worth I have yet to come across a case in practice in which a father has been denied Parental Responsibility (not Parental Rights). I have come across all sorts of appalling behaviour by fathers, none of which would affect PR. You must remember that PR is different to contact, but as you are allowing contact anyway I would say you don't stand a snowball's chance in hell if he applies to court for a PR order.

Delbelleber · 13/07/2020 19:41
Sad
OP posts:
Delbelleber · 13/07/2020 19:44

If his solicitor got my letter today is it likely she spoke to him today about the letter?

OP posts:
Bluntness100 · 13/07/2020 21:51

It’s hard to guess if she spoke to him. It depends how busy she is op. Would he have been expecting your response?

Delbelleber · 13/07/2020 22:16

No. He thinks he's so clever and he's actually thick as shit. He has been messaging me a lot today being a dick but I can't work out if he has spoken to the solicitor and he won't answer me when I've asked a couple of times.

OP posts:
LadyMacbethWasMisunderstood · 13/07/2020 23:11

Very clearly - this is what will happen:-

A solicitor will advise a client about their prospects of success. They will repeat that advice in writing.

Unless there is no argument in law at all that can he made then, notwithstanding the advice given, the solicitor will act on instructions.

Although you have not specifically asked this; there are almost no circumstances where I would advise a father not to pursue PR.

disorganisedsecretsquirrel · 13/07/2020 23:23

Parental responsibility is surely just an application that affirms a fact? As I understand it, he applies to be recognised as a parent. If he is a parent then he will get the order. I am not sure why you would think otherwise OP ?

You don't seem to be denying the fact that he IS the father.

Don't confuse this with a child arrangements order though. He may have parental responsibility but no or limited contact. However if he already had contact then I am assuming you have no concerns about the welfare of the dc when they are with him. Therefore I would expect a judge to award reasonably equal contact once his parental responsibility is established.

It sounds like you don't mind him seeing them but don't want him to have any 'rights' as a parent. ? If this is the case I think you will have a hard time persuading a judge that that is in anyway ok.

disorganisedsecretsquirrel · 13/07/2020 23:31

Unless you are intimating from Bluntnesss post that he has never paid maintenance for them and if he continues with the application it will 'cost him' - because you will claim CMS ...

Neither the rights of the dc nor the right to be a legal parent should be controlled by cost. That's just all kinds of wrong...He needs to get PR and you need to claim CMS .. if this is the case.

Collaborate · 14/07/2020 09:13

@disorganisedsecretsquirrel

Parental responsibility is surely just an application that affirms a fact? As I understand it, he applies to be recognised as a parent. If he is a parent then he will get the order. I am not sure why you would think otherwise OP ?

You don't seem to be denying the fact that he IS the father.

Don't confuse this with a child arrangements order though. He may have parental responsibility but no or limited contact. However if he already had contact then I am assuming you have no concerns about the welfare of the dc when they are with him. Therefore I would expect a judge to award reasonably equal contact once his parental responsibility is established.

It sounds like you don't mind him seeing them but don't want him to have any 'rights' as a parent. ? If this is the case I think you will have a hard time persuading a judge that that is in anyway ok.

The father is recognised by the fact that he is named on the birth certificate. In this case the father isn't yet on the BC, but that might change (and should).

PR is more than that. PR gives the father legal rights and responsibilities regarding the upbringing of a child. The right to:

  1. Consent to medical treatment.
  2. A say in a child's education.
  3. To give or refuse consent to travel abroad (though the court can give a parent blanket permission to take the child abroad on holiday).
  4. To give or refuse consent to a change of name.

If this father gets himself on the birth certificate then he will have PR. This is why most PR application/enquiries I come across are for step-parent PR.