Availability of ABWOR to the subject child

This page includes guidance on the availability of ABWOR for proceedings under the Children’s’ Hearings (Scotland) Act 2011 and the Age of Criminal Responsibility (Scotland) Act 2019, when being provided directly to a child who is the subject of the 2011 Act or 2019 Act proceedings.

It explains what you need to be satisfied of when the child can give you direct instructions and sets out the various contexts in which ABWOR may be available.

These are:

• applications for Child Assessment or Protection Orders
• a range of specified and unspecified hearings
• pre-hearing panel meetings where a S81 determination is to be made and for Part 4 Orders before the Sheriff and Sheriff Appeal Court under the 2019 Act.

It also covers whether means and merits tests are applied in the various scenarios.

If you want to provide ABWOR to the subject child, you need to be satisfied that they are capable of giving you direct instructions.

Whether they are younger than 12 or 12 and over it is for you to be satisfied that they can give such instructions and understand what is involved.

We will register the application in the name of the child, if advice and assistance has been granted. In such cases, we will assume you are satisfied the child has a good understanding of what it means to instruct you.

The above also applies to children who are not the subject children of the proceedings in question but may fall within the other applicant types that are entitled to ABWOR for example a Participation Individual. 

In terms of regulation 3A(1)(a)(iv) of The Advice and Assistance (Assistance by Way of Representation) (Scotland) Regulations 2003 the subject child can be provided with ABWOR where:

• an application is made to the sheriff by a local authority under section 35 of the Children’s Hearings (Scotland) Act 2011 for a child assessment order, and
• an application is made to the sheriff by a local authority under section 38 of the Children’s Hearings (Scotland) Act 2011 for a child protection order.

There is no requirement for financial or merits tests. Simply advise us via an ABWOR application that you are providing ABWOR to the subject child at one of the above hearings.

You can also select a templated increase in authorised expenditure to £350. This should give you sufficient cover to represent your client at the hearing.

If you need cover in excess of £350, you should submit an application for an increase explaining why £350 will be insufficient.

If you need to do the work in excess of £350 urgently, you can contact us by telephone to seek an urgent increase.

This should give you sufficient cover to represent your client at the hearing concerned.

If you require cover in excess of £350, you should submit an online application for an increase in authorised expenditure explaining why £350 will be insufficient in the circumstances.

If you require to do the work in excess of £350 urgently, you can contact us by telephone to seek an urgent increase.

In terms of regulation 3A (1)(a)(i) of the Advice and Assistance (Assistance by Way of Representation) (Scotland) Regulations 2003, the subject child can be provided with ABWOR where:

• an application is made to the sheriff under section 48 of the Children’s Hearings (Scotland) Act 2011 for variation or termination of a child protection order (sheriff court proceeding);
• a “second working day hearing” is arranged – this is a children’s hearing arranged in relation to a child by virtue of section 45 or 46 of the 2011 Act;
• a children’s hearing or a pre-hearing panel considers that it might be necessary to make a compulsory supervision order including a secure accommodation authorisation and/or a movement restriction condition in relation to a child;
• a children’s hearing to which section 69(3) of the 2011 Act applies is arranged for a child – this is a hearing where a child appears from a place of safety after the alleged commission of an offence.

In all of these situations, referred to as “specified hearings”, there is no financial or merits test to be applied where your client is the subject child.

You simply advise us via an ABWOR application that you are providing ABWOR to the subject child at one of the specified hearings.

You can also select a templated increase in authorised expenditure to £350.  This should give you sufficient cover to represent your client at the hearing.  If you need cover in excess of £350, you should submit an application for an increase explaining why £350 will be insufficient.

If you need to do work in excess of £350 urgently, you can contact us by telephone to seek an urgent increase.

If any of the above specified children’s hearings are deferred to a further hearing (other than a second working day hearing, which cannot be deferred) then the provision of ABWOR without the need for a financial or merits test continues as set out in S28C (2)(c) of the Legal Aid (Scotland) Act 1986.

In terms of regulation 3A(1)(a)(ii) of the Advice and Assistance (Assistance by Way of Representation) (Scotland) Regulations 2003, the subject child can also be provided with ABWOR at any other children’s hearing convened under the Children’s Hearings (Scotland) Act 2011, referred to as “unspecified hearings”.

In all these other children’s hearings, ABWOR is only available if your client satisfies the financial test and you receive our prior approval to provide ABWOR. We apply a merits test and must be satisfied that legal representation is needed to allow your client to effectively participate in the proceedings (this is known as the “effective participation” test).

There are no templated increases available for these hearings.  Once ABWOR has been granted, we will consider any increase submitted. We generally allow expenditure of up to £400 per hearing.

In terms of regulations 3A(1)(a)(iii) of the Advice and Assistance (Assistance by Way of Representation) (Scotland) Regulations 2003, a child can also be provided with ABWOR at

• a pre-hearing panel at which a determination under section 81 of the 2011 Act is to be made about an individual who is seeking to be deemed a relevant person  (and to whom section 79(2)(a)(i) of the Children’s Hearings (Scotland) Act 2011 refers).

In terms of regulation 3A(1)(a)(iiia) of the 2003 regulations a child can also be provided with ABWOR at

• a pre-hearing panel at which a determination under section 81A of the 2011 Act is to be made about ending someone’s relevant person’s status (and to whom section 79(5A)(a)(i) of the 2011 Act refers).

In terms of regulation  3A (1) (a) (iiib) of the 2003 regulations an individual can also be provided with ABWOR at

• a pre- hearing panel at which a determination that they be deemed a participation individual to take part in the full hearing to discuss contact with the subject child.

In the above situations, ABWOR is only available if your client satisfies the financial test and if you get our prior approval to provide ABWOR.

We apply a merits test and must be satisfied that legal representation is required to allow your client to effectively participate in the proceedings (this is known as the “effective participation” test).

A separate grant of advice and assistance is required to represent your client at these pre-hearing panels. If we grant ABWOR for a pre-hearing panel you still need to submit a separate grant of advice and assistance for the subsequent full children’s hearing.

If the subsequent children’s hearing is an unspecified hearing you need our prior approval to provide ABWOR to represent your client at this hearing