In a continuing series, the Law Society's practice advice service offers guidance on a range of issues
Q. My client, who is a juvenile, is scheduled to be interviewed at a police station soon. His mother, who is the appropriate adult, will also be present. What is her role as appropriate adult?
A. Both the Police and Criminal Evidence Act 1984 (PACE) and code C issued under PACE are silent as to the fundamental role of the appropriate adult. Custody officers commonly say that their role is not simply to observe but to see that the interview runs fairly and properly and to help with communication, in effect paraphrasing paragraph 11.17 of code C, which states the following:
If an appropriate adult is present at an interview, they shall be informed:
They are not expected to act simply as an observer; and the purpose of their presence is to:
A parent, guardian or other volunteer appropriate adult may have misperceptions about the role. That person might mistakenly believe that 'advising' means deciding everything for your client and 'facilitating communication' means getting your client to assist the police by calling on your client to answer their questions.
The appropriate adult's presence is necessary to help the juvenile cope with the demands of custody and questioning and to appreciate the seriousness of the situation. The appropriate adult provides the maturity that is required to help the juvenile gain a degree of understanding sufficient to enable sensible action. Eric Shepherd, author of Police Station Skills for Legal Advisers, states this as being the fundamental role of the appropriate adult.
You should invite your client's mother to brief you on her understanding of the appropriate adult's role, and advise further if necessary
(See Police Station Skills for Legal Advisers - accreditation manual, 3rd edition, published by the Law Society and available from the Society's bookshop, tel: 020 7320 5640).
Q. I have been asked to prepare a change-of-name deed for a client's daughter who is ten years of age.
My client is not married to the child's father. I understand that the law on parental responsibility recently changed. What is the position?
A. The provisions of section 111 of the Adoption and Children Act 2002 came into effect on 1 December 2003 (see the Adoption and Children Act 2002 (Commencement Order No 4) Order 2003 SI 2003/3079). Section 111 amended section 4 of the Children Act 1989.
It provides that a father who is not married to the mother at the time of the child's birth is to have parental responsibility if registration or re-registration of the birth takes place according to the provisions of the Births and Deaths Registration Act 1953. In summary, both parents have to register the birth of their baby together for unmarried fathers to gain parental responsibility under this provision.
The provisions are not intended to be retrospective and will apply to births registered on or after 1 December 2003. The normal rules on re-registration will apply, and the provisions will be determined by sections 10(1)(a)(b)(c) and 10A(1) of the 1953 Act. It is not possible for a birth to be re-registered if the father has already been correctly registered. (See [2004] Gazette, 25 March, 43).
In these particular circumstances, the father has not therefore acquired parental responsibility by this route. The client can effect the change of name without any permission or consent, but if the father disagrees it would still be good practice to consider the making of an application to the court for a specific issue order.
Q. Are there any guideline rates for summary assessment in relation to counsel's fees?
A. Yes, you can find them at www.courtservice.gov.uk. It is emphasised that these figures are not recommended rates but it is hoped that they may provide a helpful starting point for judges when assessing counsel's fees.
Q. I am a newly qualified solicitor and have been asked to swear a statutory declaration for the first time. What is the wording of the oral declaration to be made by the declarant?
A. The form of wording is: 'I solemnly and sincerely declare that this is my name and handwriting and that the contents of this my declaration are true [if there are exhibits add: and that this/these is/are the exhibit/s referred to].'
For further information on swearing oaths and declarations, see the Law Society's Guide to Oaths and Affirmations, 2nd edition, available from the Society's bookshop.
Q. I have been asked to administer an oath to a document intended for use in court proceedings in a foreign country. Can I do this?
A.It depends on the law of that country. Do not take it for granted that the country concerned will accept the signature of a commissioner authorised to take oaths under the law of England and Wales.
You should suggest that the prospective deponent makes enquiries with his lawyers abroad. In case of doubt, he can be referred to a notary public whose authority to administer oaths is recognised internationally (see the Law Society's Guide to Oaths and Affirmations, 2nd edition, available from the Society's bookshop).
Q. I act for clients in a conveyancing matter. The office copies show a charge in favour of the Law Society. Who do I contact to get this discharged?
A. In April 1989, responsibility for the administration of the legal aid scheme transferred from the Law Society to the Legal Aid Board (now the Legal Services Commission).
Therefore, you need to contact the Land Charges Department at the Legal Services Commission, DX 328 London/Chancery Lane; or tel: 020 7759 1356.
Q. My firm has paid the fee for my practising certificate. Do I have to declare this on my income tax return form?
A. No. The Inland Revenue has agreed that, where an employer has paid an employee's professional subscription to a recognised body, no benefit would be deemed to accrue to the employee and this does not have to be recorded on his income tax return. This applies only to solicitors in private practice and not to those in-house (see section 343 of the Income Tax (Earnings and Pensions Act) 2003).
This column is compiled by the Law Society's Practice Advice Service, tel: 0870 606 2522. Send comments to the Practice Advice Service, the Law Society, 113 Chancery Lane, London WC2A 1PL. The service endeavours to ensure that the information provided is correct, but does not accept liability for error or omission. This publication is intended for information purposes only and solicitors should not act on the basis of the information provided alone, without verifying it first
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