legal aid provisions of the children’s hearings (scotland) act 2011

Legal Aid Provisions of the Children’s Hearings

(Scotland) Act 2011

Legal Aid Provisions of the Children’s Hearings

(Scotland) Act 2011

• Part 19

• Children's Legal Assistance (Scotland) Regulations 2013

The Main ChangesThe Main Changes

• New “children’s legal assistance” scheme for proceedings before children’s hearings and the court

• Transfer of responsibility for assessing legal aid applications from the Sheriff to the Board

• “Duty” scheme• Contributions regime• Children’s Code of Practice, registration and

quality assurance

Who gets what, when and where?

Who gets what, when and where?

•Advice and assistance•Automatic children’s legal aid•ABWOR•Children’s legal aid•Special urgency legal aid

The Four Specified Hearings

The Four Specified Hearings

•CPO variation or termination•2nd working day hearing•Secure accommodation

placement•“Custody” hearing

The Effective Participation TestThe Effective Participation Test

Regulation 14 of the Advice & Assistance (ABWOR) (Scotland) Regulations 2003 as amended

“Effective participation under the Children’s Hearings (Scotland) Act 2011

14. When determining for the purposes of regulations 3A(3) or 13(3A) whether legal representation is required to allow a person to effectively participate, the solicitor or Board (as the case may be) must take into account the following matters –

a) the complexity of the case, including the existence and difficulty of any points of law in issue;

b) the nature of the legal issues involved;c) the ability of the person to consider and challenge any document

or information in the hearings or proceedings without the assistance of a solicitor;

d) the ability of the person to present his or her views in an effective manner without the assistance of a solicitor.”

Children’s Legal AidChildren’s Legal Aid

•Available for sheriff court proceedings and appeals to Sheriff Principal and Court of Session

•Applications to the Board! (not the sheriff)

Children’s Hearing (Scotland) Act 2011 – New Overview


Advice & Assistance

Available To: Proceedings Type: Solicitor Test:

Board Test:

ChildRelevant Person

Deemed Relevant Person

Non Deemed Relevant PersonS126 Individual

Other

Advice re a Children’s Hearing or an associated court proceeding

MeansMerits

Means verification



Automatic

Available To:

Proceeding Type: Solicitor Test:

Board Test:

Child

Court Proceedings:1.Variation or termination of a CPO

Children’s Hearing:1.2nd working day hearing following CPO

2.Hearing to contemplate secure accommodation

3.Hearing following arrest/detention

None Notification only



ABWORAvailable To: Proceedings Type: Solicitor

Test:Board Test:

Child Court Proceedings:1.S35 Application for CAO2.S38 Application for CPO

3.Variation of termination of CPO




None Notification only

Relevant Person


Court Proceedings:1.S35 Application for CAO2.S38 Application for CPO

3.Variation of termination of CPO




MeansMerits

Means verification

“Back end” check of merits when account

received



ABWORAvailable To: Proceedings Type: Solicitor

Test:Board Test:



All other unspecified Children’s Hearings

S79 (2) Pre-Hearing Panel

Means Means verificationMerits

S126 Individual S126 Hearing only Means Means verificationMerits

Non Deemed Relevant Person

S79 (2) Pre-Hearing Panel

Children’s hearing where S81 determination to be made

Means Means verificationMerits



Legal Aid

Available To: Proceedings Type: Solicitor Test: Board Test:



Proceedings under Part 10 or 15 of the 2011 Act (court proceedings

arising from a pre-panel hearing or children’s hearing decision including

appeals to the Sheriff, Sheriff Principal and Court of Session)

None

NB: Submit legal aid application to

the Board

MeansMerits

Non Deemed Relevant Person

S160 appeal to the Sheriff and S164 to the Sheriff Principal and Court of

Session

None MeansMerits

S126 Individual S161 appeal to Sheriff and S165 appeal to the Sheriff Principal and

Court of Session

None MeansMerits

Financial Eligibility and Contributions


A&A/ABWOR

•Standard eligibility tests applied by solicitor.•Disposable income and disposable capital to be assessed.•Usual verification criteria apply. •Contributions collected by solicitors.

Exception

•ABWOR for child for specified hearings – no financial test and no contributions.



Children’s legal aid –

• Automatic - no financial test- no contribution

•All others - means test - applied by SLAB- undue hardship test- contributions collected by SLAB



Undue Hardship Test

•Allows SLAB to apply discretion.•Can only be applied where full details supplied.•Standard assessment calculates disposable income and contribution payable.•Undue hardship test allows us to consider granting children’s legal aid even when applicant over financial limits – e.g. very high cost cases



Contributions Payable:

Case typeS98, S99, S160

S101, S110,

S154,S161, S162, S166, S48

S163, S164, S165, S167

Ave weeks 4 12 24

Actual Weekly Disposable

Income

£100£25.60

(20% of £32 (100-68) x 4 weeks)

£57.60

15% of £32 x 12 weeks

£76.8010% of £32 x

24weeks

£130£73.60

(£25.60 + 40% of £30 (130-100) x 4 weeks

£147.60

£57.60 + 25% of £30 x 12 weeks

£220.80£76.80 +

20% of £30 x 24 weeks

£160£139.60

(£73.60 + 55% of £30 (160-130) x 4 weeks

£309.60

£147.60 + 45% of £30 x 12 weeks

£436.80£220.80 +

30% of £30 x 24 weeks

£222

£313.20

(£139.60 + 70% of £62 (222-160) x 4 weeks

£808

£309.60 + 67% of £62 x 12 weeks

£1032

£436.80 + 40%of £62

x 24 weeks

Rule 61Rule 61• Recommendation from panel

members• Reporter contacts Board• Board facilitates• Not part of Duty Scheme

Code of PracticeCode of Practice

• Register of solicitors and firms.• Board to prepare draft Code of Practice.• Consultation.• Submit draft Code to Ministers.• Minister specifies date to come into effect and how

to publish.• Only solicitors included in the register to provide

CLA.• Solicitors and firms included in register must

comply with requirements of Code.• Board must monitor compliance.• Board can remove solicitors and firms for non-

compliance.


•5 Parts: Introduction.Conditions for Registration.Standards of Professional

Conduct.Standards of Service.System of Management.


Part 2 – Conditions for Registration

Competence 1 -

Understanding and detailed knowledge of provisions of 2011 Act and associated Rules and Regulations.

Competence 2 -

An understanding and detailed knowledge of the children’s legal assistance scheme.

Competence 3 -

An understanding of the ethos of the children’s hearing system.

Competence 4 -

Detailed knowledge or experience of representing clients at children’s hearings and related court proceedings.

Competence 5 -

If representing child clients a general understanding of child development and the principles of communicating with children.

Duty SchemeDuty Scheme

Operation of Scheme

•Initial plan for 1 month-thereafter 12 months.•Allocations dependent on numbers.•Plans run from Monday to Sunday.•Allocated in blocks of one week (usually).•Most work office hours

Duty SchemeDuty Scheme

•Applications from firms and sole practitioners.•Specify by name the solicitor(s).•Unrestricted practising certificate in respect of legal aid and registered on children’s legal assistance register.•Give priority to duty scheme.•Notify Board if unable to fulfil.•One month’s notice to withdraw.

RegistrationRegistration

• Both firm and solicitors have to register.

• Forms available on website.• Assessment and review process.• Initial registration open until 17

May 2013.

legal aid provisions of the children’s hearings (scotland) act 2011

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