Availability of ABWOR to a ‘Participation Individual’ and to a ‘Non Deemed Participation Individual’ under the 2011 Act

Section 25 of the Children (Scotland) Act 2020 introduces rights of participation (‘participation rights’) in children’s hearings for certain individuals who are not:

• a relevant or deemed relevant person
• the subject child of the hearing in question
• a non-deemed relevant person seeking relevant person status
• a S126 Individual.

It creates a new section (79(5ZA)) in the Children’s Hearings (Scotland) Act 2011 giving the following procedural rights, subject to any conditions and limitations in the Children’s Hearings Procedural Rules:

• to be notified of a hearing
• to provide a report for the hearing
• to be given documents specified in the rules
• to be authorised by the chair to attend the hearing
• to be represented at the hearing.

The criteria (‘participation criteria’) for an individual to have these participation rights are set out in The Children’s Hearings (Scotland) Act 2011 (Rules of Procedure in Children’s Hearings) Amendment Rules 2021

A new rule, 2A, is created which gives the participation rights to an individual where all the following apply:

• the individual is living with or has lived with the child
• there is an ongoing relationship with the character of a relationship between siblings (whether or not there is a parent in common)
• the hearing is likely to make a decision significantly affecting contact or the possibility of contact
• the individual is capable of forming a view on the matter of their contact.

If the Reporter is satisfied that the above criteria are met, the individual will have these participation rights and be invited to attend a children’s hearing. This person is a referred to as a ‘Participation Individual’ (PI) by us. We do not refer to such persons as siblings as it is clear that such persons may not actually be siblings.

In considering whether the participation criteria are met, regard is to be had to the views of the child and any relevant person (Rule 2A (4)).

The Reporter may not accept that such a person has these participation rights and may not therefore invite that person to take part in a children’s hearing about another subject child.

However, section 79 and 81 of the 2011 Act is amended to create a route to a hearing before a pre-hearing panel (PHP) or at the beginning of certain children’s hearings when an individual wants them to consider whether they meet the criteria. If an individual requests a PHP for this purpose, the Reporter must arrange one.

This person who requests the Reporter to fix a PHP or asks the Reporter that this be considered at the beginning of a children’s hearing is referred to as a ‘Non Deemed Participation Individual’ (NDPI) by us. They will become a PI if they are successful in being given these participation rights at the PHP or beginning of the full hearing.

In considering whether the participation criteria are met, regard is to be had to the views of the child and any relevant person (Rule 2A (4)).

The participation rights apply to most hearings. However they do not apply to:

• second working day hearings
• criminal/anti-social behaviour advice hearings
• suspension hearings.

In terms of amended Rule 20 the individual:

• has a right to be accompanied by a representative.

However, the representative does not:

• have an independent right of attendance
• have to be a registered children’s solicitor.

From 23 January 2023, an application for ABWOR to represent such a person at the children’s hearing can be made to us.

As a pre-condition, ABWOR will only be available if the individual satisfies the financial test and you receive our prior approval to provide ABWOR.

The effective participation test will be applied by us and if this is met we will grant the application.

If you wish to make such an application then in the ABWOR application you require to:

• select the applicant type ‘relevant person’
• make it clear that you seek to represent a Participation Individual invited to attend a children’s hearing
• upload the invitation letter from the Reporter
• tell us why the PI requires a solicitor , rather than representation by an advocacy worker or a lay representative, to effectively participate in the hearing.

You require to select the applicant type of ‘relevant person’ until such time as our application system can be updated to list this person as a separate applicant type.

From 23 January 2023, an application for ABWOR to represent a person who is seeking to exercise their rights under section 25 of the Children (Scotland) 2020 Act and be deemed to be a Participation Individual at a pre hearing panel or at the beginning of a full children’s hearing , can be made to us.

As a pre-condition, ABWOR will only be available if the individual satisfies the financial test and you receive our prior approval to provide ABWOR.

The effective participation test will be applied by us and if this is met we will grant the application.

If you wish to make such an application then in the ABWOR application you require to:

• select the applicant type ‘non deemed relevant person’
• make it clear that you seek to represent a non-deemed Participation Individual seeking participation rights at a pre hearing panel or at the beginning of a children’s hearing
• confirm that the Reporter has been asked and refused to invite the applicant to a full children’s hearing as a Participation Individual
• tell us why the applicant requires a solicitor, rather than representation by an advocacy worker or a lay representative, to effectively participate in the pre hearing panel or at the beginning of a full hearing.

You require to select the applicant type of ‘non-deemed relevant person’ until such time as our application system can be updated to list this person as a separate applicant type.

If we give our prior approval to represent your client at a pre-hearing panel and your client is given participation rights then you need to apply again for a fresh grant of ABWOR for the full children’s hearing that your client will then be invited to. A children’s hearing is distinct to a PHP in terms of the legislation.

If your client who is seeking to be deemed PI and is not so deemed at a pre hearing panel or at the beginning of a full hearing then the grant of ABWOR in place for them will fall. ABWOR will no longer be available to your client from the point that determination is made and for the remainder of the children’s hearing even if they are allowed by the panel to stay for its duration.

However, we will pay you for all reasonable and necessary costs and outlays associated with your return to your office in association with your client seeking participation individual status.