Legal Aid Provisions of the Children’s Hearings (Scotland) Act 2011 Part 19 Children's Legal Assistance (Scotland) Regulations 2013

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

The Four Specified Hearings CPO variation or termination 2 nd working day hearing Secure accommodation placement “Custody” hearing

The Effective Participation Test Regulation 14 of the Advice & Assistance (ABWOR) (Scotland) Regulations 2003 as amended “Effective participation under the Children’s Hearings (Scotland) Act 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 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: Child Relevant Person Deemed Relevant Person Non Deemed Relevant Person S126 Individual Other Advice re a Children’s Hearing or an associated court proceeding Means Merits Means verification

Children’s Hearing (Scotland) Act 2011 – New Overview Automatic Available To:Proceeding Type:Solicitor Test:Board Test: Child Court Proceedings: 1.Variation or termination of a CPO Children’s Hearing: 1.2 nd working day hearing following CPO 2.Hearing to contemplate secure accommodation 3.Hearing following arrest/detention NoneNotification only

Children’s Hearing (Scotland) Act 2011 – New Overview ABWOR Available To:Proceedings Type:Solicitor Test: Board Test: ChildCourt Proceedings: 1.S35 Application for CAO 2.S38 Application for CPO 3.Variation of termination of CPO Children’s Hearing: 1.2 nd working day hearing following CPO 2.Hearing to contemplate secure accommodation 3.Hearing following arrest/detention NoneNotification only Relevant Person Deemed Relevant Person Court Proceedings: 1.S35 Application for CAO 2.S38 Application for CPO 3.Variation of termination of CPO Children’s Hearing: 1.2 nd working day hearing following CPO 2.Hearing to contemplate secure accommodation 3.Hearing following arrest/detention Means Merits Means verification “Back end” check of merits when account received

Children’s Hearing (Scotland) Act 2011 – New Overview ABWOR Available To:Proceedings Type:Solicitor Test:Board Test: Child Relevant Person Deemed Relevant Person All other unspecified Children’s Hearings S79 (2) Pre-Hearing Panel MeansMeans verification Merits S126 IndividualS126 Hearing onlyMeansMeans verification Merits Non Deemed Relevant Person S79 (2) Pre-Hearing Panel Children’s hearing where S81 determination to be made MeansMeans verification Merits

Children’s Hearing (Scotland) Act 2011 – New Overview Legal Aid Available To:Proceedings Type:Solicitor Test:Board Test: Child Relevant Person Deemed Relevant Person 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 Means Merits Non Deemed Relevant Person S160 appeal to the Sheriff and S164 to the Sheriff Principal and Court of Session NoneMeans Merits S126 IndividualS161 appeal to Sheriff and S165 appeal to the Sheriff Principal and Court of Session NoneMeans Merits

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.

Financial Eligibility and 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

Financial Eligibility and Contributions 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

Financial Eligibility and Contributions Contributions Payable: Case type S98, S99, S160 S101, S110, S154,S161, S162, S166, S48 S163, S164, S165, S167 Ave weeks Actual Weekly Disposable Income £100 £25.60 (20% of £32 (100-68) x 4 weeks) £ % of £32 x 12 weeks £ % of £32 x 24 weeks £130 £73.60 (£ % of £30 ( ) x 4 weeks £ £ % of £30 x 12 weeks £ £ % of £30 x 24 weeks £160 £ (£ % of £30 ( ) x 4 weeks £ £ % of £30 x 12 weeks £ £ % of £30 x 24 weeks £222 £ (£ % of £62 ( ) x 4 weeks £808 £ % of £62 x 12 weeks £1032 £ % of £62 x 24 weeks

Rule 61 Recommendation from panel members Reporter contacts Board Board facilitates Not part of Duty Scheme

Code 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.

Code of Practice 5 Parts:Introduction. Conditions for Registration. Standards of Professional Conduct. Standards of Service. System of Management.

Code of Practice 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 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 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.

Registration Both firm and solicitors have to register. Forms available on website. Assessment and review process. Initial registration open until 17 May 2013.