15. EXCLUSION ORDERS
A) My client’s child is in voluntary care and she wants advice on this. Is this civil or children’s advice and assistance and what category code do I use?
If the case has been referred to the Reporter and/or a CPO is being sought or is likely to be sought in the near future then this is a children’s advice and assistance matter and the category code to use is CHSA. If not , this is a civil advice and assistance matter and the category code to use is FAM.
B) My client has been in to see me about his/her four children who are being referred to a children’s hearing. Should I admit him/her to advice and assistance once or four times ?
You have one client here so you should admit your client to advice and assistance once.
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A) I am a second year trainee. Can I provide ABWOR to a client at a children’s hearing?
Yes, but only if you hold a restricted practising certificate and both you and the firm that you work for are registered with SLAB to carry out children’s legal assistance.
B) I want to apply for ABWOR to represent my client who is the mother of four children at a hearing that will be taking place on the same date for her four children. Do I have to submit four ABWOR applications?No , you only require to submit one application as you have one client and the hearings for all her four children are taking place on the same day.
C) My client doesn’t want to attend a hearing and wants me to seek ABWOR to go in his/her place. Can I do this?
No , it is a criminal offence for a relevant person to choose not to attend a hearing unless his/her attendance has been dispensed with at a pre hearing panel or earlier hearing. You cannot represent them and assist them in effectively participating at the hearing if they are not in attendance.
D) My client has received papers for a second working day hearing and her attendance has not been dispensed with at a pre hearing panel but she is still in hospital and unable to attend. Can I apply for ABWOR despite the fact she won’t be at the hearing?Yes as she is physically incapable of attending this hearing and she has not simply decided that she doesn’t want to attend. However you need to have full instructions from her and the hearing themselves must be content to proceed in her absence.
E) When do I need to submit a fresh application for ABWOR, rather than an increase in authorised expenditure request, when another hearing is fixed?
For any review hearing ( including a review at the request of panel members) or remit from court hearing after an appeal has taken place a fresh application is needed.
F) When do I need to submit an increase in authorised expenditure request rather than a fresh application for ABWOR when another hearing is fixed?
For any deferred hearing, including further hearings to consider an interim Compulsory Supervision Order or interim variation of Compulsory Supervision Order , where there has been no substantive decision made on a full Compulsory Supervision Order you should submit a request for an increase if you do not have enough available expenditure.
G) My increase in authorised expenditure applications keeps getting refused or continued where another hearing has been fixed. Why is this?
You always need to tell us of the nature and date, if known, of the next hearing you want to attend to ensure that a fresh application for ABWOR is not required. We suggest that you submit this information in the ‘Urgency/Case Details’ screen and in response to the “summary of work done” question. This section may shortly be amended to “summary of work done and proposed”
H) My client has been granted ABWOR and I will be representing her at the next hearing. I want to submit written representations on her behalf beforehand. Will I get paid for this work?
You will require to specifically seek and be granted this as a work item in an increase in authorised expenditure request . You will require to demonstrate that this work is reasonable and necessary , considering the ethos of the children’s hearing system , and that such written submissions will assist the client to effectively participate in the hearing.
I) My client has been granted ABWOR and I will be representing her at the next hearing. I want to obtain statements from the other attendees at the hearing beforehand. Will I get paid for this work?
No , this is not considered to be reasonable and necessary preparatory work for a children’s hearing where such attendees will not be giving evidence .
J) My client wishes me to represent him at a children’s hearing on Monday. It’s now Friday 5.30pm and your office is closed and I have been told that as it is a public holiday on Monday you will not be re opening until Tuesday. How can I obtain ABWOR and an increase for this hearing on Monday?
Our out of office telephone number for urgent matters that cannot wait until the next working day morning is 07711 424344.
K) My client has just advised me that the SWD are seeking a CPO in respect of her daughter at Perth Sheriff Court at 6pm tonight which she wishes to defend. I have granted ABWOR to her but will require more than the initial level of authorised expenditure (£95) for this court hearing which could last at least an hour. It is now 5.30pm and your office has closed for the night. What can I do?
Our out of office telephone number for urgent matters that cannot wait until the next working day morning is 07711 424344.
L) My client has been granted ABWOR for representation at a pre hearing panel as he is requesting relevant person status. He was not however deemed to be a relevant person at this PHP and his right to ABWOR therefore fell at that point. Can I still claim payment for return to my office?
Yes , any grant of ABWOR made for representation at a PHP or hearing where a relevant person determination is to be made under S81 of the 2011 Act will include travel charges to and from the hearing in question.
A) I have received a call from SLAB who have asked me to act as the Duty solicitor to a child who has a secure hearing today. What form of children’s legal assistance is available to me?
If you are acting as the Duty solicitor and you have confirmed that the child does not have his/her own solicitor of choice you can provide automatic legal aid to that child on condition that the child wants you to represent them and you have their full instructions as to what they want to happen at the hearing.
B) What is automatic legal and how can I get it?
Automatic Legal aid is a type of children’s legal assistance which is available ‘automatically’ as there are no financial or merits tests to be applied. You simply submit an on line application for automatic legal aid to us to obtain a legal aid reference number. This will ensure that you can then receive payment for this work.
C) I attended at the hearing centre and met the child but they told me that they didn’t want a solicitor and stormed off. Will I still get paid for my time and travel?
Yes , as you were acting as the Duty solicitor you will be paid under automatic legal aid for all reasonable and necessary work , including travel to meet the child and return to your office, up until the point you were told that the child did not want representation by you.
D) I attended at the hearing centre only to discover that the child in question had already instructed their own solicitor of choice . Am I still obliged to act here and can I still get paid for my time and travel?
As the child has instructed their own solicitor your services as the Duty Solicitor are no longer required and you can step down . You will be paid under automatic legal aid for all reasonable and necessary work , including travel to meet the child and return to your offices , up until the point when you discovered that the child already had his/her own solicitor of choice.
E) I represented the child as their Duty solicitor at the secure hearing which was deferred for three weeks and an interim CSO with a condition of residence in secure accommodation was issued. The child wants me to represent them at this next deferred hearing.? Am I still covered under automatic legal aid for this next hearing?
Yes , as no decision has been made on a full , as opposed to interim CSO , the grant of automatic legal aid to the child remains in place for this deferred hearing and any further deferred hearing after that.
F) I represented the child as their Duty solicitor at the secure hearing and the hearing issued a full CSO authorising residence in secure accommodation for three months. There will be another hearing just before the three moths are up to review this order. Am I still covered under automatic legal aid for this next hearing?
No , as the hearing made a full CSO the grant of automatic legal aid will not continue for any review , as opposed to deferred , hearing. If the child still wants you to represent them at this review hearing you will then become their solicitor of choice and ABWOR is available to represent them at the next hearing. You will need to submit an ABWOR application and a request for an increase in expenditure to us .
A) I have received a phone call from SLAB who have asked if I would accept a request from a hearing who made a recommendation that a mother receive legal advice and representation at the next hearing. What form of children’s legal assistance is available to me?
You can provide advice and assistance and ABWOR but only if your client is eligible to receive this. Automatic legal aid is not available as you are not acting as a Duty solicitor to a child.
B) If I cannot guarantee that this mother will be eligible to receive advice and assistance can I decline to act here?
Yes you can. Unlike the Duty Scheme, it is entirely your choice if you wish to accept this recommendation. You will not be in breach of the Children’s Code of Practice if you tell us that you don’t want to meet this person to find out if they are eligible for children’s advice and assistance.
A) My client attended a Statement of Grounds hearing for her four children and the Grounds have been referred to the sheriff for proof. How many legal aid applications do I need to submit?
Your client is the mother of the children where grounds will be considered by the sheriff at the same time so only one application for legal aid is needed.
A) My client has applied for legal aid to appeal the decision of the sheriff to hold grounds established to the Sheriff Appeal Court and SLAB has continued the application for a copy of the Stated Case. If legal aid isn’t in place how can I make an application to the sheriff to State a Case and then to obtain and submit this Stated Case?
You can request special urgency cover to make such an application, attend any hearing on adjustments and to lodge the Stated Case produced by the court.
B) I have legal aid for an appeal before the Sheriff Appeal Court. I had sanction for counsel in the sheriff court proceedings which are the subject of this appeal. Do I need to submit a fresh application for counsel for this appeal before the Sheriff Appeal Court?
Yes , this is a separate legal aid grant so you need a fresh sanction application for counsel to act here. Solicitors have rights of audience in the Sheriff Appeal Court.
C) My appeal before the Court of Session was successful and the case has been remitted back to the sheriff for disposal. Do I have cover for the disposal hearing before the sheriff under the grant of legal aid for the appeal to the Court of Session?
No, but if you had legal aid for the proceedings in the sheriff court that were appealed then that original certificate can be used for all reasonable and necessary work carried out at the sheriff court disposal hearing.
D) My appeal before the Court of Session was successful and the case has been remitted back to the sheriff for disposal. I had sanction for counsel to conduct the sheriff court proceedings. Does this sanction for counsel still stand for the disposal hearing?
No , you will require to apply to us again if you wish counsel to continue to be involved in the proceedings. It could be that counsel is no longer appropriate for the disposal hearing.
E) My appeal before the Sheriff Appeal Court was unsuccessful and I now want to seek leave to appeal to the Court of Session against this decision. Does my existing grant cover me for this leave to appeal hearing before the Sheriff Appeal Court?
Yes. You do not need sanction for this purpose and can simply charge for this step in proceedings in your final account.
F) The Sheriff Appeal Court has granted me leave to appeal their decision to the Court of Session. Does my existing grant for the Sheriff Appeal Court appeal cover me for the appeal before the Court of Session?
No. A fresh application for legal aid will require to be made to SLAB for the appeal before the Court of Session.
A) Do I require to seek VAT as well as the cost of an expert’s report?
No you only need to seek the cost of the report itself. VAT will be added on and paid when you submit your account.
B) If a want a report from my client’s GP or other professional involved in their care do I need to submit a sanction application for this ?
No, a GP or other involved professional is not classed as an independent expert and this will simply be a matter for justification at the accounts stage unless the costs are likely to exceed £2000 excluding VAT in which case you will require to submit sanction for unusually large expenditure.
C) I have sanction for a report from an expert witness and now want to cite them to attend court. Do I need to submit further sanction application?
Not unless the costs of doing this are going to exceed £2000 excluding VAT. If they are then you need to submit a sanction application for unusually large expenditure.
D) Another relevant party was granted sanction for a report from an expert witness to be jointly instructed with my client. The total costs for the expert’s report were sanctioned under the other party’s grant of legal aid. I now want to cite the expert to attend court. Do I need to submit a sanction application for this witness?
No, unless the costs of doing this are going to exceed £2000 excluding VAT. If they are you need to submit a sanction application for unusually large expenditure. When you submit your account, state that sanction for this joint report was granted under a different legal aid certificate for another party in the proceedings.
E) When does SLAB need to see a comparative quotation from another expert?
When the costs of the proposed expert are likely to exceed £2000 excluding VAT in total, excluding VAT.
A) If SLAB grants sanction for counsel to conduct the proof or appeal does this grant cover consultations or is further sanction required?
Further sanction is not required for counsel to consult with the client but further sanction is needed for counsel to consult with anyone else , for example , an expert witness.
B) I have sanction for counsel to conduct the proof. Does this grant allow for counsel to conduct a pre proof hearing that has been fixed ?
No - a further sanction application is needed for counsel to conduct any preliminary hearings.
C) I had sanction for counsel to conduct proceedings before the sheriff which are now at appeal. Do I need to apply for sanction for counsel to conduct this appeal in the Sheriff Appeal Court?
Yes ,an appeal requires a fresh application for legal aid. It also needs a fresh application for sanction for counsel to conduct it. A solicitor has rights of audience in the Sheriff Appeal Court.
D) I had sanction for counsel to conduct a proof which has been successfully appealed to the sheriff appeal court where I also had sanction for counsel. The appeal has been remitted back to the sheriff for disposal. Does sanction for counsel remain in place for this disposal hearing before the sheriff?
No , a further sanction for counsel application will require to be made on the legal aid certificate that was in place for the proof proceedings before the sheriff.
A) Can you provide some examples of the kind of work that would require this kind of sanction?
Locus inspections ,taking certain precognitions (see below) and any watching brief at a related criminal trial or civil proof.
B) Is there a cost minimum or maximum for this?
No , anything that involves any cost that you wish to be paid at the accounts stage , including for example a fee of £10 , will require sanction granted.
C) Do I need to submit sanction for unusual work to obtain precognitions from the Reporter’s witnesses which I consider to be material to my client’s case?
No, but only if you have been advised by SCRA that they are not in a position to make these statements available to you within a reasonable timescale or if they have stated that they do not ever intend to make these statements available to you. (If you have made such a request to SCRA prior to the effective date of the grant of legal aid then please make this clear on any account submitted to avoid delays in payment)
D) The Reporter has provided disclosure and I have the Reporter’s witnesses statements in this case but they raise more questions than they answer. I still wish to precognose a certain witness on their list. Do I need to submit sanction for unusual work to do this ?
Not if you consider that taking this further precognition would be reasonable, necessary and material to your client’s case and you can justify this on submission of your account. However if you wish payment to be guaranteed in such circumstances then it is open to you to submit a prospective sanction for this. Where you do this please provide the statement from SCRA and sufficient information to show further precognition is appropriate.
E) What types of precognitions will always require sanction for unusual work ?
Police precognitions in offence proofs where SCRA has disclosed the statements to you and formal witness precognitions where SCRA has disclosed the statements to you or has given you an outline of what they will be speaking to
A) How much does SLAB class as unusually large expenditure in a children’s court case?
Any single item of work that will cost over £2000 excluding VAT.
B) I have a witness I want to call on behalf of my client and you have already sanctioned a report from him/her. He needs to travel from America and give evidence in person. This will cost £2100. Does this require further sanction?
Yes - as the costs are likely to exceed £2000 excluding VAT you need to submit a sanction request for unusually large expenditure.
A) I have been appointed by the sheriff to act as an adult relevant person’s curator ad litem as she is no longer able to give direct instructions to her solicitor. Legal Aid has been granted to her but her nominated solicitor has now withdrawn from acting as the nominated solicitor cannot obtain direct instructions from the assisted party. Can I submit an application for a transfer of that certificate to me acting as both the new solicitor to the applicant and her curator ad litem?No, you will require to submit a fresh application for legal aid to SLAB. The legal aid certificate currently in place has met the statutory merits criteria based on the fact that the applicant could directly instruct a solicitor. Different assessment criteria will be applied where a curator is acting on behalf of the applicant.
A) Why do I have to demonstrate to SLAB in an application for specially urgent work that the urgency was not self created by myself or the applicant?
In terms of Regulation 18 of the Children’s Legal Assistance (Scotland) Regulations 2013 , SLAB can only grant special urgency legal aid where the matter is specially urgent but also where it is reasonable in the particular circumstances of the case that the applicant should receive this. If the urgency has been self created , then it cannot be said that it is reasonable for the applicant to receive legal aid.
B) If I have been granted specially urgent legal aid for conduct of a pre proof hearing , with this include associated travel costs?
Yes , this is not an actual step in court proceedings but it is ancillary and necessary for the conduct of the court hearing in question.
C) Can I seek specially urgent legal aid for an Opinion from Counsel?
No , obtaining an Opinion from counsel is not a step in court proceedings. You would require to submit an increase under advice and assistance for this work or if it relates to the conduct of a court hearing for which you have been granted specially urgent legal aid then you can submit a sanction application for this Opinion under that special urgency grant.
A) How can the advice and assistance and legal aid payment arrangements help clients with communication and other support needs?
The legal aid fee arrangements can allow for additional payments which may be needed to cover the reasonable costs of additional communication support with clients, such as the use of language or BSL interpreters, from the time that legal aid is in place. Legal aid can also meet the cost of lengthier meeting times that clients might need, or travel by the solicitor where the client is unable to attend the solicitor’s office due to disability or ill heath, to help them access the services of a solicitor.
Prior authority is not normally needed to cover payments made to interpreters or other communication support professionals (e.g. palantypist) which are charged separately as outlays, although in advice and assistance and ABWOR cases, solicitors need to obtain appropriate increases in authorised expenditure first. This is also the same for any travel or lengthier meeting times with clients which may be required in advice and assistance, ABWOR and time and line legal aid cases.
A) I appreciate that to carry out children’s legal assistance work I need to be registered with SLAB. However I have been granted sanction for counsel to conduct a S101 proof. Can my assistant who is a practising solicitor but is not registered to carry out children’s work sit in with counsel during this proof?
Yes they can but they will be paid at unqualified rates just as if they were a first year trainee , paralegal etc. Only a registered children’s solicitor can be paid at qualified rates when carrying out any kind of children’s legal assistance work which includes instructing counsel and advising the client during the proof or other court hearing.
A) My client has been sent papers from the Local Authority who are seeking an Exclusion Order under S76 of the Children (Scotland) Act 1995. Is children’s legal aid available for this?
No but civil legal aid is available. The category code to use for this is CEXC.
A) Why is this quality assurance scheme being introduced?
Set up by SLAB and the Law Society of Scotland the Children’s Quality Assurance Scheme (CQAS) seeks to maintain and improve the quality of service and legal work provided by solicitors using legal aid. It has powers to remove firms from the children’s register if necessary.
Our compliance auditors’ reviews, which will also be introduced later this year for children’s legal assistance cases, will ensure solicitors are complying with the requirements for providing children's legal assistance. However the CQAS goes further in that it will demonstrate the quality of service given to clients within the children’s hearing system where paid for by the tax payer.
Quality Assurance for solicitors providing civil legal assistance has been in place since 2004 and since 2010 for criminal legal assistance. Quality Assurance is used by many professions and is designed to support good quality professional services. It is not designed to ‘catch-out’ solicitors. Where peer reviewers identify practices that can be improved, the individual solicitor and firm is given an opportunity to do that.
The Civil and Criminal QA Schemes are currently file-based. The Children’s QA scheme will also be file-based and we expect the experienced peer reviewers to be able to make valid judgements about the quality of service being provided by an individual solicitor on the basis of evidence in the files.
B) Why not address advocacy too?
In the future, the scheme could develop to cover advocacy skills, but changes like this will not be introduced during the first six year cycle.
C) What plans are there to keep solicitors informed about how the scheme is operating?
The Children’s QA Committee is keen to provide regular feedback to solicitors about the peer reviewers’ general findings. We will provide regular updates highlighting any recurring issues identified that could be improved upon. We will also give examples of good practice identified by peer reviewers.
D) How does the scheme work?
Full details about the way the scheme will operate including how files are selected, the criteria to be considered and what happens if a solicitor and/or firm fails a review can be found in Part 1 Chapter 3 of the Children’s Handbook.
E) How much will the scheme cost?
The annual budget is around £40,000. The expected costs of the children’s scheme represents about 0.7 % of the total cost of children’s legal assistance to the taxpayer.
F) How much are peer reviewers paid?
Peer reviewers are paid the same rate as the civil and criminal peer reviewers; currently a daily rate of £385 plus VAT. A review of 10 files is expected to last half a day.