Ensuring valid application for participation individuals at Children’s Hearings – no availability of ABWOR at present

This update is to clarify the correct procedure for applying for legal representation for siblings seeking to exercise their rights under section 25 of the Children (Scotland) 2020 Act.

Our update on 17 August 2021 explained that there is no ABWOR provision for representation of participation individuals (siblings or anyone that can establish such a relationship) at a pre hearing panel where they are seeking that status or at a full children’s hearing.

If ABWOR is granted to your client in error, then we are unable to meet the cost of you representing your client at the pre hearing panel and/or children’s hearing if:

• your client was in fact a participation individual
  and
• the Scottish Government have not given you a specific determination that we make ABWOR available to them.

Our update also explained that in any case where you consider legal representation to be necessary or appropriate for siblings seeking to exercise their rights under section 25 of the Children (Scotland) 2020 Act you may apply to the Scottish Government to seek a determination under section 4(2)(c) of our 1986 Act.

The August update provides more information about how you do this.

Invalid grants of ABWOR

We are still receiving a small number of applications for ABWOR for these participation individuals where one of the following applicant types is being selected:

• child
• S126 individual

When to select ‘child’: You should only select the applicant type of ‘child’ where your client is the subject child of the pre hearing panel or children’s hearing.

When to select ‘S126 individual’: A participation individual seeking participation rights or who has been invited to a hearing by the Reporter is not a ‘S126 individual’.

A ‘S126 individual’ can only ever attend a hearing fixed by the Reporter under S126 of the 2011 Act. Such a hearing is rare and triggered specifically by a right of contact under a separate civil permanence or contact order.

In terms of S126, the Reporter must fix such a hearing within five days and the individual concerned (a S126 individual who has a right of contact on a separate civil or permanence order) can attend and make representations at this review hearing. ABWOR and children’s legal aid (for any onward appeal to the sheriff court) is available to such a person in terms of our Act and Regulations.

Availability of Advice and assistance

If the Reporter invites your client to a hearing and they do not fall within the category of a participation individual or a deemed relevant person (for example, a grandparent or foster carer) then it should also be noted that ABWOR is not available to them either. You can however provide such an invitee with advice and assistance both before and after the hearing assuming they qualify financially for this.

More information

If you have any queries please contact:

Elizabeth Cuschieri
Senior solicitor – Children’s legal assistance
cuschierili@slab.org.uk