The children’s duty scheme and providing automatic legal aid under the 2011 Act

If you have agreed with us to act as the duty solicitor for a child for a hearing taking place under the Children’s Hearings (Scotland) Act 2011, you will be providing the child with automatic children’s legal aid. This is not subject to any means or merits statutory tests. You can begin to do work straightaway. You do not need to meet the child and obtain instructions before you can start charging for reasonable and necessary work that has to be carried out.

However, you must meet the child prior to the hearing taking place in order to establish the child:

• does not already have a solicitor of choice
• is old enough and able to give you direct instructions
• wants you to represent them at the hearing
• has given you instructions as to what they want to happen at the hearing.

If any of the above circumstances are not met, then you can no longer act as the duty solicitor for that child. However, you can charge under automatic legal aid for all reasonable and necessary time and outlays incurred for returning back to your office or ordinary place of work.

Once you have agreed to act as a duty solicitor you are required to:

• submit an online application for automatic legal aid
• receive a reference number
• complete a Declaration Form
• submit an account in respect of the work you carry out.

While there is no timescale stipulated for registering the grant of automatic legal aid you should do this as soon as possible to ensure you can submit an account and receive payment for the work as quickly as possible.

Cover under the duty scheme to a subject child can only be made available where ABWOR has not already been made available through the child’s own solicitor of choice. The subject child involved in any specified hearing has the right to instruct and have their own solicitor before the duty scheme requires to come into operation.

Therefore, you should:

• always ask the subject child if they have their own solicitor of choice
• if they do then you should withdraw from acting
• the subject child’s solicitor of choice can then provide ABWOR to the subject child.

In this circumstance, you can claim automatic legal aid for all reasonable and necessary work carried out up to the point you find out that the subject child already has a solicitor of choice who they want to represent them. However, where possible, you should aim to find this out prior to meeting the subject child by making telephone contact with them, their parents, carers, unit manager or social worker.

If the subject child does not already have a solicitor of choice you must also ensure that:

• the child is both old enough and able to give you direct instructions
• they want you to represent them at the hearing.

If the subject child does not want you to represent them at the hearing then you must not do so even where you have agreed with us to act as that child’s duty solicitor. You can only act on a child’s instructions if you represent the child as a duty solicitor or directly as their solicitor of choice.

Our statutory obligation is to make a solicitor available to act as a Duty solicitor to a subject child for the specified hearings but that child has the final say as to whether or not they want you to represent them.

You must always meet the child prior to the hearing taking place in order to obtain their instructions. Such a meeting can take place in person, remotely or by telephone. You are not able to represent a child as a duty solicitor in the hearing if you do not have their instructions even where the child is unable, or has been excused from attending the hearing itself.

Where you have the child’s instructions to represent them at the hearing and the child does not attend the hearing, you are not necessarily entitled to be admitted to the hearing.  That will be a decision for the hearing itself. When the child is present, you are absolutely entitled to attend with them as their legal representative.