Availability of ABWOR to relevant persons and deemed relevant persons in 2011 Act proceedings

Regulation 1(2) of the Advice and Assistance (Assistance by Way of Representation) (Scotland) Regulations 2003 provides that a relevant person has the meaning given in section 200 of the Children’s Hearings (Scotland) Act 2011 and includes a person deemed to be a relevant person by virtue of section 81(3), 160(4)(b) or 164(3)(a) of the 2011 Act.

In terms of regulation 3A(1)(b)(iv) of the Advice and Assistance (Assistance by Way of Representation) (Scotland) Regulations 2003 a relevant person 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.

In both of these situations, you apply:

• the financial test with reference to the financial limits under section 8 of the 1986 Act, and
• the merits test of “effective participation”

In terms of regulation 3A(3) of the 2003 regulations, ABWOR can be provided only if you are satisfied that legal representation is needed to allow your client to effectively participate in the proceedings.

If you are satisfied that your client passes both tests, you can provide ABWOR.

You must tell us via an ABWOR application that you are providing ABWOR to your client and on what basis you have satisfied yourself on the effective participation test.

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.

In terms of regulation 3A(1)(b)(i) of the Advice and Assistance (Assistance by Way of Representation) (Scotland) Regulations 2003 a relevant person 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” you apply:

• the financial test with reference to the financial limits under section 8 of the 1986 Act, and
• the merits test of “effective participation”

In terms of regulation 3A(3) of the 2003 regulations, ABWOR can be provided only if you are satisfied that legal representation is required to allow the relevant person to effectively participate in the four specified proceedings described above.

Where you are satisfied your client passes both the financial and merits tests you can provide ABWOR for these specified hearings. You must advise us via an ABWOR application that you are providing ABWOR to your client and set out the basis on which you have satisfied yourself that the effective participation test is met.

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 concerned.  If you require cover in excess of £350, you should submit an online application for an increase 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.

If any of the above specified children’s hearings (other than a second working day hearing, which cannot be deferred) are deferred to a subsequent hearing then ABWOR continues and you do not need to apply the financial and merits tests again.

In terms of the 2011 Act and the 2013 Regulations children’s legal aid (and special urgency legal aid) is also available to a relevant person (and deemed relevant person) for an application to the sheriff under section 48 of the 2011 Act for variation or termination of a child protection order. It is up to you to decide which form of children’s legal assistance you want to provide to your client assuming they are eligible.

In terms of regulation 3A(1)(b)(ii) of the Advice and Assistance (Assistance by Way of Representation) (Scotland) Regulations 2003 a relevant person can also be provided with ABWOR for

• any other children’s hearing convened under the Children’s Hearings (Scotland) Act 2011.

In all of these children’s hearings (referred to as “unspecified hearings”), ABWOR is only available if your client satisfies the financial test and if you receive our prior approval to provide ABWOR.

We apply the merits test of ‘effective participation’.

If we grant prior approval for you to provide ABWOR then this continues for any deferred hearing and you do not need to apply the financial test again nor seek further prior approval from us for the next deferred hearing. This includes all hearings where interim orders are in place. You may need to submit an increase request for a deferred hearing if you have reached your current limit of expenditure.

In terms of regulation 3A (1) (b) (iii) of the Advice and Assistance (Assistance by Way of Representation) (Scotland) Regulations 2003 a relevant person (including someone who has already been deemed to be relevant) can also be provided with ABWOR at

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

In terms of regulation 3A (1)(b)(iiia) of the 2003 regulations a relevant person can also get ABWOR for

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

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

We apply the merits test of ‘effective participation’ to be satisfied that legal representation is needed to allow your client to effectively participate in the proceedings.

A separate application and grant of ABWOR is needed to represent your client at these pre-hearing panel meetings. If you are given prior approval from us you will still need to admit your client to a separate grant of advice and assistance for the subsequent full children’s hearing unless the full hearing takes place on the same day.

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