Friday, 8 March 2013

Parental Order Applications - Do I need a solicitor and how much will it cost?

A Judgment in a surrogacy case was published on BAILII earlier this week.

Heard on St Valentine’s Day, the case concerned an application by a same-sex couple for a Parental Order relating to their son.  He had been born to a surrogate mother in India in March 2012.

The High Court Judge concluded that the child’s welfare demanded the making of a Parental Order in favour of the Commissioning Parents.  They were described by the experts assisting the court as being “utterly committed to meeting his [the child’s] needs and providing him with the best opportunities throughout his life…..They are extremely child focussed and interact with [the child] constantly. He experiences much emotional warmth and positive reinforcement”.  Their approach and attitude to the child’s birth history was said to be “open, positive, educated and child-focussed”.

The Judgment is entirely unremarkable. 

In saying this, I mean no disrespect to the Commissioning Parents.  Of course the issue was anything but “unremarkable” for them.  As the culmination of the process by which their son would become a full member of their family, it was doubtless an occasion of great excitement, joy and hope.

Nor is it meant to be disrespectful of the High Court Judge, Mrs Justice Theis.  Her Judgment is a model of clarity of method and approach.  It identifies the various statutory criteria the Commissioning Parents had to satisfy in order to be eligible for a Parental Order.  It identifies whether and how they cleared each of those hurdles. 

Why, then, do I bother to mention the Judgment at all?

Well, for this reason.  The Commissioning Parents were unrepresented in their application, and acted as Litigants-in-Person.  That seemingly presented no obstacle to the preparation of their case – her Ladyship described, for example, their court bundle as “excellent”. 

The question that emerges is whether Commissioning Parents need a solicitor at all to deal with their Parental Order application.  I offer this equivocal answer:  it depends.

It depends on the abilities, time and patience the Commissioning Parents have at their disposal.  It depends on how complex is the factual matrix that culminates in the surrogacy arrangement and thence the Parental Order application.

In straightforward cases, organised Commissioning Parents with a degree of acumen in navigating administration and bureaucracy will need little or no professional legal input.  They will be able, perfectly competently, to complete their Parental Order application, and then participate in the court process all the way through to the final hearing without a solicitor (much less a barrister!) representing them. 

More difficult cases will inevitably benefit from a degree of legal and tactical oversight.  The more difficult of these may require the traditional model of representation, with a solicitor on the court record acting for the Commissioning Parents throughout.  Those might require the instruction of a barrister for the substantive court hearing/s, to ensure the Commissioning Parents’ case is put at its best.

As happened in Mrs Justice Theis’s case, it might be possible for potentially more legally complex issues to be dealt with through the appointment of an Advocate to the Court.  Her Ladyship had earlier appointed CAFCASS Legal in that capacity to address the court on whether the Commissioning Parents had the necessary legal connection to England and Wales.  So, the existence of a complicating factor does not always mean that full-scale legal representation will follow. 

As in other areas, it is the legal advisers who must respond to the needs of their increasingly savvy consumer clients.  They must be prepared to unpack the traditional approach to the solicitor / client relationship and offer those parts of it that the client wants and from which he or she will benefit.  The “one size fits all” approach to the provision of legal services to our clients is history.  Anyone cleaving to the provision of legal services using the traditional full-scale representation model for all, whether clients need that or not, is on a fast-track to extinction. 

In terms of fees, the legal costs for providing a broad overview and guidance, leaving Commissioning Parent/s to undertake most of the Parental Order process themselves, should be in the region of about £2,000.  Legal costs for a solicitor undertaking the Parental Order application from start to completion ought to be between about £5,000 and £15,000 (depending on the complexity of the issues).  Only in the most difficult and unusual of cases should legal fees exceed £20,000.  And it is only in those difficult and unusual cases where a barrister will need to be involved alongside the solicitor. 

The above cost estimate figures are exclusive of VAT.

I know of some individuals who have paid in the region of £75,000 to lawyers to obtain a Parental Order.  I know of some cases where a barrister has been retained virtually from the moment of instruction, to provide the advice and effectively to run the case.  The solicitor has merely acted as a conduit between Counsel and client.  Neither the costs nor approach are justifiable.  Costs of this magnitude suggest the lawyer either is wholly unfamiliar with the process and is learning on the job at the expense of the Commissioning Parent/s, or else is fleecing the client for fees.  Likewise the reliance on Counsel to do the job that any solicitor professing expertise in this area should be capable of doing themselves.

It ought to be possible in more straightforward Parental Order applications for Commissioning Parents to agree a fixed-fee with their solicitor. 

1 comment:

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