UPDATED: Participants at Children’s Hearings – applying for a determination for representation under S25 of the Children (Scotland) Act 2020

The update issued on 17 August 2021 has been corrected to show it is only siblings, and not grandparents, that can seek a determination in the circumstances described below

Section 25 of the 2020 Act gives siblings, or those who can establish a sibling relationship, an opportunity to participate in a children’s hearing to discuss their contact with the child who is the subject of the hearing.

However, the legal aid regulations for ABWOR for the pre-hearing panel and children’s hearing do not extend to those individuals. Provision is made primarily for the child who is the subject matter of the hearing, and for those who are ‘relevant persons’ (whether falling within the definition in the Children’s Hearings (Scotland) Act 2011 or deemed as such) but not for others.

In any case, where you consider legal representation to be necessary or appropriate for siblings seeking to exercise their rights under section 25 you may apply to the Scottish Government to seek a determination under section 4(2)(c) of the 1986 Act.

A determination, which may be subject to certain conditions and restrictions, authorises us to pay from the Scottish Legal Aid Fund fees and outlays incurred by a solicitor in connection with the provision of advice, assistance and representation to a client.

The decision as to whether to approve a determination request is made by the Minister for Community Safety, further to advice on the background of the case and legal advice from the Scottish Government Legal Directorate on the use of the determination making power in the specific circumstances of the request.  Accordingly, any request should be made with as much notice as possible in advance of any relevant hearing.

How to make a request for a determination

Any request for a determination should be sent to determinations@gov.scot, and should include the following:

• Details of the background to the case including the client’s name and date of birth
• Description of the proceedings and your client’s interest
• Confirmation that ABWOR is not available to your client for the proceedings. You can refer to this update and/or produce any other notification we have sent you which confirms this.
• Be clear what you are seeking a determination for, such as a pre-hearing panel (PHP) to decide this or for the full hearing or both assuming a decision at the PHP is made to invite the client to the full hearing.
• Any relevant information supporting why legal representation is necessary or appropriate in the specific circumstances of the case.

Where a determination is granted

If a determination is granted, using Legal Aid Online, you should submit an ABWOR application, and any associated increase, selecting the applicant type: ‘Relevant Person/Deemed Relevant Person’ (even if they are under 18 years of age).

In response to the next question, namely ‘Please explain why you consider the applicant relevant or deemed relevant’, insert: ‘Participant – SG determination’.

You are not required to answer the Effective Participation questions and in response to them, insert: ‘SG determination’.

A copy of the determination should be uploaded with the application.

More information

If you have any queries please contact:

Alison Brand
Team Leader
Civil Increases & Children’s Legal Assistance

0131 240 1958
brandal@slab.org.uk