Children's legal assistance
Children's Hearing's (Scotland) Act 2011
The Children’s Hearings (Scotland) Act 2011 (the 2011 Act) has made major changes to the operation of children’s hearings and to the bodies responsible for their administration and management. It has also made significant changes to the availability of legal aid in these proceedings. We worked with the Scottish Government, Children's Hearings Scotland, the Scottish Children's Reporter Administration and other justice sector partners, including the Law Society of Scotland on the implementation of these changes.
Under the previous arrangements, no form of legal aid or advice and assistance (including ABWOR) was available to enable a solicitor or counsel to represent a child or any relevant person at a children’s hearing. The 2011 Act changed that and introduced a Registration scheme, a Code of practice and an associated scheme for quality assurance for solicitors who are registered to provide children’s legal assistance.
The 2011 Act changes can be summarised as follows:
The establishment of a scheme within the legal aid and assistance scheme for legal representation to be provided, subject to certain tests, at children’s hearings and associated court proceedings under the title “children’s legal assistance”.
Transfer of responsibility for assessing entitlement to children’s legal aid in the sheriff court from sheriffs to SLAB. In some circumstances children’s legal aid will be made available automatically to a child without application of the merits and means tests.
The establishment of a contributions regime for those who can afford to contribute to the costs of children’s legal aid.
The establishment of a registration scheme and a code of practice and an associated scheme for quality assurance for solicitors who are paid under the children’s legal assistance scheme.
As a result of this legislation, children’s legal assistance has been made available as follows:
For certain prescribed hearings the child can apply for and will automatically be granted Children’s Legal Aid.
For the same prescribed hearings a relevant person can apply for ABWOR. This will be considered and granted by the solicitor if the application meets the means and merits tests.
For other hearings the child and any relevant person can apply for ABWOR. The regulations require that the solicitor obtains SLAB’s prior authority. The solicitor considers the means tests and SLAB applies post-grant checks to ensure it is satisfied these have been applied correctly. SLAB considers the merits tests and decides if they have been met.
Advice and Assistance will be available as is it is currently to children and relevant persons before or after a hearing and applications are considered and if appropriate granted by the solicitor.
Children’s legal aid will be available, subject to certain tests, for court proceedings. Applications will considered by SLAB.
Read the Equalities Impact Assessment for children's legal assistance/the legal aid aspects of the Children's Hearings (Scotland) Act 2011(the 2011 Act) - Children's Legal Assistance Equalities Impact Assessment
Following a consultation process and discussions with contributing organisations, we have published the Code of Practice in relation to Children's Legal Assistance.
The Children's Legal Assistance Register is now operating. Duty plans are now online for the Children’s Duty Scheme. Full details are available on our website’s Children’s Registration page.
If you would like to discuss the implementation of the 2011 Act, please contact:
Joe Kelly, Head of Civil Legal Assistance on 0131 240 2031 or firstname.lastname@example.org