General scope of ABWOR in proceedings under the 2011 Act and Part 4 of the 2019 Act

Assistance by Way of Representation (ABWOR) is defined in section 6(1) of the Legal Aid (Scotland) Act 1986 as

“advice and assistance provided to a person by taking on his behalf any step in instituting, conducting or defending any proceedings

• before a court or tribunal, or
• in connection with a statutory inquiry,

whether by representing him in those proceedings or by otherwise taking any step on his behalf (as distinct from assisting him in taking such a step on his own behalf).”

ABWOR is a type of advice and assistance made available under Part II of the Act which enables representation to be provided but only for the proceedings listed in the Advice and Assistance (Assistance by Way of Representation) (Scotland) Regulations 2003 ( the ‘2003 Regulations’).

Regulation 3A of the 2003 regulations (as amended by regulation 6 of the Children’s Legal Assistance (Miscellaneous Amendments and Consequential Provisions) (Scotland) Regulations 2021 and the Legal Aid and Advice and Assistance (Miscellaneous Amendment) (Scotland) Regulations 2023)  prescribes the persons and proceedings under the Children’s Hearings (Scotland) Act 2011 and the Age of Criminal Responsibility (Scotland) Act 2019 for which ABWOR is available.

If you submit an advice and assistance application under the category code CHSA (2011 Act cases) then you will be asked if you are providing or seeking to provide ABWOR. If you want to represent your client at a forthcoming pre-hearing panel or children’s hearing you should answer ‘yes’.

You will then be asked the nature of the children’s hearing in question and will be given a list of the different hearing types depending on who your client is.

A Reporter can sometimes convene a hearing in respect of a child for more than one purpose. If this happens and one of the hearing types is a specified hearing then select this hearing type from the first list presented. If there is more than one type of unspecified hearing taking place then select all of them on the unspecified hearing list presented.

If you submit an advice and assistance application under the category code of ACR and your client is the subject child then you will be asked if you are providing or seeking to provide ABWOR. If you want to represent the child at a Part 4 application before the sheriff for an order relating to the child or for any associated appeal before the Sheriff Appeal Court then you should answer ‘yes’.

If you are acting as the child’s duty solicitor then you require to submit an application for automatic legal aid and NOT ABWOR.

The definition of ABWOR means that if you are placing written submissions or representations before a children’s hearing or pre hearing panel on behalf of your client by way of a letter or other document this is representation even if you do not physically attend the hearing and make oral representations. If you do not have ABWOR in place we cannot pay for this work under advice and assistance.

Where ABWOR is in place we will not, as a matter of course, allow payments for the drafting of written submissions to be placed before a hearing as these are not required in terms of the 2011 Act and the associated Children’s Hearings (Scotland) Act 2011 (Rules of Procedure in Children’s Hearings) Rules 2013.

However, each case will depend on its own particular facts and circumstances. If you want to place submissions before a hearing you should specifically request this as a work item in an increase request.  If you do not specifically request cover for this work and have such cover granted, then you will have to demonstrate the following at the accounts stage:

• that this work was reasonable and necessary in the circumstances of the particular case in question considering the ethos of the children’s hearing system  and
• how these written submissions assisted your client to effectively participate in the hearing.

Similarly, when submitting your increase request to carry out this work you must address these points.

Where ABWOR is in place we will not view as reasonable and necessary preparation for representation of your client at the hearing taking statements from individuals, such as:

• a social worker
• school teacher
• mental health nurse.

This is because taking statements and/or precognitions for court proceedings is required in order to have notice of what a particular witness is going to say in evidence.  Attendees at a children’ s hearing and pre-hearing panel are not attending as witnesses at that hearing and their statements are not required beforehand to enable your client to effectively participate in the children’s hearing or pre-hearing panel in question.

If you represent a:

• relevant person
• deemed relevant person
• section 126 individual
• non-deemed relevant person
• participation individual
• non deemed participation individual.

you only need one grant of advice and assistance for a children’s hearing or pre-hearing panel meeting irrespective of the number of subject children involved in the hearing and/or if the hearings are going to be held back to back on the same date.