PRIVATE & CONFIDENTIAL Mr Tomasz Lewandowski 37 King Edwards Road Enfield EN3 7DA
29 October 2015 Also, via Email:
[email protected]
Dear Mr Lewandowski Your Matter - Contact with children Thank you for instructing us to act on behalf of you. Please read carefully below statement as this is very important document. This document should be kept in safe place. If you have any query please do not hesitate to contact us. I refer to our recent meeting in the office and thank you for instructing me. This letter explains the basis on which I will carry out work on your case. Please take time to read these documents at your convenience. Please be aware of the legal limitation of our service. Qualification of Mr Artur Bogusiewicz: PgDip / CPE Law, BA (Hons, Politics, EU Law). Artur Bogusiewicz is associate member of Chartered Institute of Legal Executives. Any advice received from the The CounselEx may need to be consulted with a solicitor or barrister specialised in particular field of law. If you have any questions about your case, please contact me at this office. If I am not available, please leave a message and I will return your call as soon as I am available. People Responsible For Your Work I am an associate member of the Chartered Institute of Legal Executives, and am regulated by CILEx Regulation. The work I will be undertaking in relation to your instructions. I will be dealing with your matters as per your instructions, personally. Please be aware that any matters that I am not authorised to deal with, would need to be referred to an authorised lawyer. I will be explaining to you the issues rose in your matter and keep you informed of progress.I will try to avoid changing the people who handle your work, but if this cannot be avoided, I will inform you promptly as to who will be handling this matter and why the change was necessary. The CounselEx may instruct third party such as solicitor or barrister if such as professional assistant needed. However, this will be consulted with you. The hour rate of solicitor is £200-250 per hour plus VAT. Information about costs Our charges will be calculated on the basis of the time spent by me on your matter. This calculation will be based on an hourly rate of £80.00 per hour (VAT may be payable during the course of this matter, we do not charge VAT at present).You will be notified in advance in writing of any changes to this rate. Our agreement however provides for costs to be calculated by reference to the compensation which you might receive; should this applied, our fee would be 15% of your compensation minus any fee paid in advance for initial work. The main financial terms are that if you lose your case you will be charged for the time as per hour rate, and travel of our representative. If you do not win the fees are £ 20 per hour travel and £ 80 first part of an hour plus £ 80 for any additional full hour, these fees are for representation at the Tribunal. You may also, be charged for disbursements such as tribunal costs. We charge for particular, estimated service only and do not hold the client’s monies on account.
Your Instructions: You informed me that in October 2014, your son Eryk complained at school about his mother end your ex-partner, drinking problem. Consequently, the social service was involved and your children were placed in foster family under the Court Order dated 3 rd August 2015. Upon such as Order, the children could be rehabilitated into your care after 6 months from the date of the hearing. The local authority – Enfild Council lodged an application under s. 31 Children Act 1989. You told me that your request to take care of children was refused by the social service. You stated that you are able to see your children ones a month and that you wish to see them more often. You asked me to contact the Social Service, seeking revision of your contact with children. You also, asked me to seek the social service position in respect to future children’s maintenance and fostering. You also, asked to contact your previous legal representant – Duncan Lewis of Spencer House, 29 Grove Hill Road, Harrow-On-The-Hill, HA1 3BN, seeking a copy of your files. You told me that you were not happy with the service you received from them and that you considering making complaint to the Legal Ombudsman Service. I agreed to contact the social service as well as the Duncan Lewis, seeking summary of your matter and a copy of your documents. We agreed that I will not assist you with any litigation work. My Advice We need to investigate your matter further in order to give you an advice. The general advice is that: What are parental responsibilities and parental rights Parental responsibility for a child is defined in the Children Act 1989 as 'all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property'. Although not defined specifically, responsibilities therefore would include:
safeguarding and promoting a child's health, development and welfare financially supporting the child providing direction and guidance to the child maintaining direct and regular contact with the child acting as a legal representative until the child is 16 if required ensuring that the child is suitably educated.
Rights which are to be used to fulfil the responsibilities listed in the paragraph above would include:
having the child living with the person with responsibility or having a say in where the child lives controlling, directing and guiding the child's upbringing if the child is not living with her/him, having a personal relationship and regular contact with the child acting as a legal representative until the child is 16 if required choosing the child's name, but there may be restrictions on changing a child's name More about changing a child's name choosing a child's religion choosing the child's education being the person to give consent for medical treatment, issuing passports, adoption, civil partnership and marriage for a child under 18 choosing a guardian for the child making decisions about the child's property on the child's behalf and for her/his benefit.
The Children Act 1989 sets out the broad principles in relation to responsibility for children but there is other legislation which covers specific areas of child care, for example, education and maintenance of a child. In this document, reference to 'a child' means a person under 18 unless specified otherwise. However, many provisions in the Children Act 1989 relate only to children up to the age of 16 unless special circumstances apply. Children have the right to make certain decisions about their own life if and when they have the understanding to do so. These decisions may be recognised by the courts, even if they are in direct conflict with parents' wishes. If there is a conflict between parents about a child's upbringing, the court will take into account the child's wishes and feelings bearing in mind her/his age and understanding (but the child's feelings will not override the other factors the court must consider). In practice, therefore, parental responsibility changes as the child grows older. However, in all cases where a court makes a decision about a child's upbringing, the child's welfare is paramount whatever her/his age. Who has parental responsibility It could be argued by unmarried fathers that the fact that they do not have automatic parental responsibility may constitute a breach of a fundamental human right (the right to a family life) which is protected by the Human Rights Act 1998. Married parents and parental responsibility The law presumes that married parents each have parental responsibility for their child. They share parental responsibility jointly but can exercise it independently. Unmarried parents and parental responsibility The unmarried mother When parents are not married, the mother will automatically have parental responsibility, whether or not she is living with the child's father. The unmarried father When parents are not married, the father does not have automatic parental responsibility even if he is living with the child's mother. However, he acquires equal parental responsibility if:
on or after 1 December 2003, he registers or re-registers his child's birth jointly with the child's mother. The date that the child was born is irrelevant. Re-registration of a child's birth is possible only in limited situations he has made a parental responsibility agreement with the mother; or he has acquired it through a parental responsibility order from the court; or he is appointed as guardian; or he and the child's mother marry.
Step-parents and parental responsibility A step-parent can acquire parental responsibility for her/his step-child. A person is a step-parent if:-
s/he is the spouse or civil partner of a child's parent; and s/he is not the child's parent her/himself; and the child's parent has parental responsibility for the child.
A step-parent will acquire parental responsibility for her/his step-child if:
the child's parent (or both the child's parents if both have parental responsibility) make(s) a parental responsibility agreement with the step-parent to give the step-parent parental responsibility; or a court orders that the step-parent shall have parental responsibility.
Other people who might acquire parental responsibility 10 Some other people with an interest in the child's upbringing, for example, grandparents may in some cases acquire parental responsibility. This could happen whether or not someone else already has parental responsibility and whether or not they are related. The local authority may in some circumstances acquire parental responsibility. Parental responsibility agreements An unmarried father can acquire parental responsibility by making a parental responsibility agreement with the mother. From 1 September 2009, certain same-sex female partners can acquire parental responsibility by making a parental responsibility agreement with the mother. A step-parent can acquire a parental responsibility agreement with the child's parents. They could alternatively draw up an informal agreement which does not have the same legal status as a parental responsibility agreement. A formal parental responsibility agreement can be made whether or not the parents are living together. It must be in a form laid down by regulation. A client might want to see an example of a parental responsibility agreement. Copies are available from divorce county courts. Parental responsibility agreements do not contain details of any specific plans for the child's upbringing, for example, religion or education. If the parents want to make a detailed agreement relating to the child's upbringing, they must make a separate agreement about these issues. A parental responsibility agreement must be signed by both parents and by a witness and must be registered at the Principal Registry of the Family Division. The witness must be a court official. Parental responsibility agreements come to an end automatically when the child is 18. Otherwise, they can be brought to an end only by a court order and both parents will therefore need to consider carefully the implications of making one. They should seek legal advice. Informal agreements Unmarried parents may wish to draw up an informal agreement setting out the arrangements for the care of their child and their respective involvement. This agreement is different from a parental responsibility agreement and does not have the same legal status, for example, it would not give the unmarried father parental responsibility. Lesbian and gay couples could draw up informal agreements. Drawing up an informal agreement may often be a very useful process, both in helping a couple consider the issues involved in bringing up a child and possibly helping to avoid future disputes over the rights and responsibilities towards the child. It could be used by the court as a basis for decisions about the child if there is any future disagreement between the couple. However, the court will not be bound by terms of the agreement if it considers that to do so would not be in the child's best interests.
Sharing parental responsibility More than one person can have parental responsibility for the same child at the same time. They can each exercise their parental responsibility independently of each other, as long as this is not inconsistent with a court order. This means that on issues concerning a child's upbringing, each person with parental responsibility can make a decision, for example, about medical treatment without consulting or obtaining the consent of anyone else with parental responsibility. The exercise of parental responsibility can be restricted by a court order. Delegating parental responsibility (in loco parentis) Parental responsibility cannot be surrendered or transferred except by a court order but anyone with parental responsibility for a child may delegate, for example, by verbal or written agreement, the child's general care or particular rights or duties. For example, a parent can delegate discipline of her/his child to the child's school teacher. In some circumstances, this delegation is implicit and does not have to be written down or verbally agreed, and any delegation arrangement can be changed or revoked at any time. In loco parentis is a term used to describe the responsibility of an adult to whom care has been temporarily delegated. The person acting in loco parentis has to do what is reasonable in the circumstances for the purpose of safeguarding or promoting the child's welfare. Anyone with parental responsibility cannot escape any liability, for example, for financially supporting the child, by delegating parental responsibility. Losing parental responsibility According to the Children Act 1989, all parents lose parental responsibility in principle when a child reaches 18 years old. However, as the child grows older and gains sufficient understanding, s/he will be able to make decisions about her/his own life. Therefore, parents lose parental responsibility for these areas of the child's life before s/he reaches 18. According to other legislation, the parent may retain responsibility for certain areas of the child's life even if s/he is over 18. For example, student grants for young people over 18 are based on parental income with parental contributions assessed. Married parents Married parents cannot lose parental responsibility unless the child is adopted by someone else. They do not lose parental responsibility if they separate or divorce. Someone who loses parental responsibility cannot reapply for it at a later stage. Unmarried mothers An unmarried mother would lose parental responsibility only if a child were adopted by someone else. She could not reapply for parental responsibility at a later stage. Court orders affecting parental responsibility
If clients have to go to court about arrangements for looking after a child, they will need legal advice. Children may also be able to take court action themselves and may be eligible for publicly-funded legal services, for example, if they are in conflict with a parent or guardian.
Courts have extensive powers to make orders which affect arrangements for looking after children. For example, when married parents separate or divorce and cannot agree on the arrangements that need to be made for a child, they may ask the court to decide on a range of issues for which particular court orders have to be made. When civil partners separate or dissolve their civil partnership but cannot agree on the arrangements that need to be made for a child, they can ask the court to decide on a range of issues for which particular court orders have to be made. Before the court will make an order, it must take into account the welfare of the child as its paramount consideration. The court will make an order only if to do so would be better for the child than if it did not intervene at all. Possible orders the court could make are:
residence order contact order prohibited steps order specific issue order family assistance order guardianship wardship adoption parental responsibility order.
A person with a residence order who is not the parent or guardian cannot consent or object to an adoption or appoint a guardian, although s/he will have all the other aspects of parental responsibility. A local authority with parental responsibility for a child cannot consent or object to an adoption order, appoint a guardian or choose the child's religion. Residence orders Unmarried mothers, unmarried fathers, and step-parents who have acquired parental responsibility, and married parents whether or not they are living together, have an assumed right to have their child living with them. This right can only be changed by a court order. This order is called a residence order and states with whom the child should live. The court can make a residence order only in respect of a child under the age of 16, unless there are exceptional circumstances. The order runs out when the child reaches 16 unless there are very exceptional circumstances or the order is made on or after 1 September 2009 (see next paragraph). Residence orders replace the old custody and care and control orders. Parents who have parental responsibility retain it even if a child no longer lives with them because s/he is living with someone else who has a residence order, and they may still exercise it independently as appropriate, as long as this does not conflict with a court order. An order made on or after 1 September 2009 will last until the child reaches the age of 18, unless the courts directs that the order should end earlier or another order is made discharging the residence order before that time. If a residence order is made in favour of one person, for example, a parent, there is nothing to prevent her/him coming to an agreement that the child lives for some time with someone else, for example, the other parent. However, the parent without the residence order has no right to have the child living with her/him. Once a residence order is in force, no one can change the child's surname without the written consent of everyone who has parental responsibility for the child, or the leave of the court. Once a residence order is in force, no one can remove the child from the UK for more than one month without the written consent of everyone who has parental responsibility for the child or the leave of
the court. However, a person in whose favour a residence order has been made can take the child out of the UK for less than one month without consent. Residence order allowances The local authority has the power to make payments to a person with a residence order (or who will obtain a residence order) if that person is neither one of the child's parents nor the husband or wife of the child's parents. Joint residence orders A joint residence order can be made in favour of more than one person. For example, a joint residence order can be made in the favour of an unmarried mother and her partner of either sex who is not a parent of the child, even if they are not living together. In the case of a lesbian birth mother, the court may ask her to provide evidence that the biological father (if known) has given his consent to a joint residence application, even where he does not have parental responsibility. Another example would be an order in favour of two parents who were married and who are now divorced. This joint order would be used to specify how much time the child should spend with each parent. Joint residence orders are sometimes used when they reflect the practical arrangements made for the children where these are not in dispute between the parties. Sometimes they are used to emphasise the equal legal standing of each parent. If the order were made when, for example, parents were not living together, the order would lapse if they did live together for more than six months. Separate residence orders for the same child It is also possible for separate residence orders to be made in relation to the same child. For example, if married parents have separated and each has a new partner, a residence order could be made in favour of each couple specifying how much time the child should spend with them. Residence orders and parental responsibility A person who obtains a residence order relating to a child is automatically also given parental responsibility if s/he does not already have it, for as long as the residence order is in force. If an unmarried father is granted a residence order, the court must also make a parental responsibility order in his favour. In this case, even if the residence order is discharged, he will continue to have parental responsibility unless the parental responsibility order is also discharged. From 1 September 2009, if a same-sex female couple are not civil partners, one of the couple has a child by donor insemination or fertility treatment and the other is the child's legal parent, and the legal parent is granted a residence order, the court must also make a parental responsibility order in her favour if she does not otherwise have parental responsibility for the child. In this case, even if the residence order is discharged, she will continue to have parental responsibility unless the parental responsibility order is also discharged. The residence order grants most of the same rights and responsibilities as a parent would have, but unless s/he is a parent or guardian, a person with a residence order cannot:
consent or object to adoption of the child; or appoint a guardian.
A local authority with a residence order cannot take the steps listed in the paragraph above or choose the child's religion. Who can apply for a residence order
Certain people have the right to apply to court for a residence order, for example parents and other people can apply for a residence order only with the courts permission. Contact orders A contact order requires the person with whom the child (usually up to the age of 16) is living to allow the child to visit, stay with or have another form of contact with another person. Other forms of contact would include telephone calls and letters. Contact can be granted in anyone's favour, not just a parent or relative. It would be appropriate to apply for a court order for contact only if informal arrangements cannot be agreed or have broken down. A contact order may contain details of the frequency and place for contact. This could be a neutral location, for example, a contact centre or family centre, if one exists in the area. A contact order usually lasts until a child is 16 but the court could limit it to a shorter length of time. The court could also, in exceptional circumstances, make a contact order last until the child is 18. Problems can arise if someone has a contact order in her/his favour and the person with whom the child is living moves away. The court will allow someone with a residence order to move away with the child if this would be in the best interests of the child, even if this over-rides the other person's rights under the contact order. In this case, the court would probably grant a new contact order for changed arrangements which reflect the move. Contact orders can be used to prevent contact as well as requiring contact. In rare circumstances a court might refuse a parent any form of contact at all with her/his child. In one case, where the mother of the children was determinedly and implacably hostile to the contact, the father made numerous applications for contact. These were refused on the grounds there was a real fear for the welfare of the children if the father kept on making the applications. It was held that refusing contact was a 'draconian sanction of the last resort', and it would be only in the most exceptional circumstances that the mother would be allowed to deprive the child of its rights to any form of contact with its father. However, if someone with parental responsibility is abusing the child and/or the other parent so that s/he cannot fulfil her/his parental responsibilities, that parent could oppose contact. The presumption applies only to parents and no one else, for example, it does not apply to stepparents, or grandparents. The court would try to keep siblings together but if this is not possible, the court might make a contact order. When someone who has parental responsibility has a contact order in relation to a child, s/he can exercise her/his parental responsibility when the child is with her/him independently of anyone else with parental responsibility provided this is not incompatible with a court order. Who can apply for a contact order Some people have an automatic right to apply for a contact order, for example parents and others may apply for contact with the leave of the court. Prohibited steps orders A prohibited steps order prevents a specific action being taken in relation to a child aged up to the age of 16 (and in exceptional circumstances, 18). It can only be used to prevent steps being taken in relation to the upbringing of the child which could be taken by a parent in meeting her/his parental responsibility. A prohibited steps order can be made against anyone, not just a person with parental responsibility for the child or someone who is a party to the court proceedings. It could be used, for example, to prevent the child having contact with a particular person or to prevent the child's school
or child's name being changed. A court will not make a prohibited steps order if the same effect would be achieved by a residence or contact order. Who can apply for a prohibited steps order Any parent, guardian or special guardian or anyone in whose favour a residence order is in force may apply for a prohibited steps order. Anyone else may apply with the leave of the court. Specific issue orders A specific issue order is made when the court has been asked to make a decision about any aspect of parental responsibility relating to a child under 16 (18 in exceptional circumstances) which is under dispute, for example, a dispute about the type of education the child should receive. A court will not make a specific issue order if the same effect would be achieved by a residence or contact order. Who may apply for a specific issue order Any parent, step-parent, guardian or special guardian or anyone in whose favour a residence order is in force may apply for a specific issue order. Anyone else may apply with the leave of the court.
The work I will be undertaking in relation to your instructions i. ii. iii. iv.
Initial instructions, documents and case analyse / two hours of work, total £160 Client care letter, & advice / 30 min, total £40 Letter to the MIAM mediator / 30 min, total £40 Further work base on hourly rate of £80
I will inform you about further and additional work, as well as about the cost of such as work in advance.
Money Laundering Requirements 1 Proof of Identity The law requires advisers to get satisfactory evidence of the identity of their clients and sometimes people related to them. This is because adviser who deals with money and property on behalf of their client can be used by criminals wanting to launder money. To comply with the law, we need to get evidence of your identity as soon as possible. It is our practice to see two pieces of identification. One to include your name and date of birth, for example see list below: current signed passport birth certificate current photo card driver's licence current EEA member state identity card current identity card issued by the Electoral Office for Northern Ireland residence permit issued by the Home Office Another to include your name and address, for example see list below: PLEASE PROVIDE benefit book or original notification letter from the DWP confirming the right to benefits council tax bill utility bill or statement, or a certificate from a utilities supplier confirming an arrangement to pay services on pre-payment terms a cheque or electronic transfer drawn on an account in the name of the client with a credit or financial institution regulated for the purposes of money laundering
bank, building society or credit union statement or passbook containing current address solicitor's letter confirming recent house purchase or land registry confirmation of address local council or housing association rent card or tenancy agreement HMRC self-assessment statement or tax demand house or motor insurance certificate If you cannot provide us with the specific identification requested, please contact us as soon as possible to discuss other ways to verify your identity. 2. Confidentiality We are professionally and legally obliged to keep your affairs confidential. However, we may be required by statute to make a disclosure to the National Crime Agency where they know or suspect that a transaction may involve money laundering or terrorist financing. If we make a disclosure in relation to your matter, we may not be able to tell you that a disclosure has been made. We may have to stop working on your matter for a period of time and may not be able to tell you why. 3. Source of Funds If you provide us with a substantial sum of money at any stage during the administration of the estate, then, due to EU Money Laundering Regulations, we are obliged to ask for evidence of where the this money has come from. We will require confirmation of the source of these funds by providing us with copies of statements, passbooks or such other information as may be required. Data Protection We will process any personal data you provide to us in accordance with our legal obligations under the applicable data protection laws and regulations. Please note that under current money laundering regulations we are required to carry out detailed identity checks on the information you provide to us and we may carry out an electronic Anti Money Laundering Search. Storage of Papers and Deeds We are entitled to keep all your papers and documents while money is owing to us. We will usually keep our file of papers (except for any of your papers which you ask to be returned to you) for no more than six years and acceptance of our terms will mean that we have your authority to destroy the file six years after sending you our final bill. We will not destroy documents you ask us to deposit in safe custody and these can be reclaimed at any time. A retrieval fee of £30 may be charged and this charge may increase in future. Termination You may terminate your instructions to us in writing at any time and if you do we are entitled to keep all your papers and documents while money is owing to us. We will decide to stop acting for you only with good reason and on giving you reasonable notice. If you or we decide that we will stop acting for you, you will pay our charges and expenses as set out earlier. Raising queries or concerns with us We are confident that we will give you a high quality service in all respects. However, if you do have any queries or concerns about our work for you, please take them up initially with The CounselEx. We will endeavour to resolve any problem quickly and we have an internal complaints handling procedure to help resolve the issue or issues. Complaints and redress mechanisms are provided through the Prioprietor of the company. Complaints and concerns We hope that you do not feel the need to lodge a complaint. However should a complaint arise, in the first instance you should write to me, and provide the reason for your concerns. I will respond to your complaint within fourteen (14) days.
I will investigate your complaint by conducting a review of your file and possibly meeting with you. I will provide a written response to your complaint within fourteen (14) days of receipt. Should you still not be happy with my outcome of complaint’s investigation, you can refer the matter free of charge to CILEx Regulation for investigation. CILEx Regulation will investigate free of charge, any allegations of misconduct made against members of CILEx. Complaints of this type must be made within 12 months of the event that gave rise to the complaint or within 12 months of the complainant having knowledge of the events, whichever is the greater. CILEx Regulation, Kempston Manor, Kempston, Bedford, MK42 7AB, Telephone: 01234845770, Email:
[email protected], www.cilexregulation.org.uk. Conclusion Your continuing instructions will amount to your acceptance of these terms of business, but I would request you to please sign and date the enclosed copy of this letter and return it to us immediately. Then we can be confident that you understand the basis on which we will act for you. We hope that by sending this letter to you we have addressed your immediate queries about the dayto-day handling of your work and our terms of business. However, if you have any other questions, please do not hesitate to contact me.This is an important document, which we would urge you to keep in a safe place for future reference. Acceptance of these terms Your continuing instructions in this matter will amount to your acceptance of these terms and conditions of business. We ask you to please sign and date the enclosed confirmation and return it to us immediately. We can then be confident that you understand the basis on which we will act for you. If you have any queries about any aspect of these terms and conditions, please contact us immediately. In the meantime, we look forward to hearing from you. Should you have any comments, objectives or other concerns please raise them with me within 7 days from the date of the letter. Yours sincerely Artur Bogusiewicz The CounselEx E:
[email protected], T: +447532457405 The Long Lodge, 265 - 269 Kingston Road, LONDON, SW19 3FW ________________________________________________________________________ I confirm that I have read and understood the above and agree the contents of the same. I confirm that all above has been translated and explained to me.
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