https://www.slab.org.uk/guidance/the-effective-participation-test/
This page provides guidance on the ‘effective participation’ test in ABWOR. It sets out the regulatory factors considered in ‘effective participation’ and how they are assessed. These include the complexity of the case; the nature of the legal issues involved; the ability of the person to consider or challenge documents or information, and to present their views in an effective manner. It also provides information on the availability of ABWOR where the client is not present.
In terms of regulation 13 (3A) of The Advice and Assistance (Assistance by Way of Representation) (Scotland) Regulations 2003 we can only approve the provision of ABWOR for attendance at a children’s hearing where we are satisfied that the legal representation is required to allow the child, the relevant person or individual to effectively participate in the hearing.
There are four regulatory factors set out in regulation 14 of the 2003 Regulations to allow us to ensure that the effective participation test has been met. These factors must be taken into account by you and us in deciding if representation is needed to effectively participate. These factors do not exclude you or us from taking other factors into account. We need to be satisfied that there are reasons for your client to get representation at a hearing taking into consideration the ethos of the hearing system and its relatively informal and non-adversarial nature.
It is important to note that the 2003 regulations do not suggest that:
You, or we, must consider all the circumstances of the particular case.
If you grant ABWOR to your client on the basis of a non-regulatory factor then you must tell us about this in your ABWOR application.
The whole premise of the effective participation test is that the child or adult in question requires a solicitor to participate effectively in the hearing itself.
If your client chooses not to be present at the hearing and they have not been excused in advance from attending:
It is important to note that:
However, where your client has been excused of their statutory duty to attend the hearing in terms of S74(3)(a) of the Children’s Hearings (Scotland) Act 2011 and they then choose not to attend the hearing, if they have been able to give you full instructions about their position, the effective participation test could be met in such circumstances.
If there is a hearing and your client is unable to attend the hearing due to some physical incapacity, for example, being in hospital, and if it can be shown that they would have been at the hearing but for their physical incapacity then the effective participation test could also be met in these circumstances.
You, or we, must take into account the following factors:
Your ABWOR application must address whether any of these factors apply in the case that makes it appropriate for you, as a solicitor, to be the one who provides legal representation to the applicant.
You should address:
A complex case may involve:
You must consider whether the children’s hearing or pre-hearing panelais:
We will not, generally, conclude that the following facts alone will satisfy us that the case is complex:
If you wish to rely on this factor, in support of your ABWOR application you will require to:
The legal issues may include:
If you want to rely on this factor, you should note that it is not at all unusual for fairly lengthy social work reports, for example, to be placed before a children’s hearing. This fact alone will not mean this factor is satisfied.
If you want to rely on this factor in support of your ABWOR application you should:
It is key that there has to be an issue which is such that your client needs legal representation.
You should also address:
The fact that your client does not agree with what is written in a report is not sufficient as this is not unusual in hearings and it does not necessarily mean that legal representation is needed.
It should be noted there may be other persons or bodies, other than a legal representative, who can assist your client to present their views in an effective manner at the children’s hearing.
These could include:
If you wish to rely on this factor indicating that your client needs your legal help then, in support of your ABWOR application, you should let us know your client’s views and why they cannot effectively present them without your specific assistance, rather than the assistance of anyone else.
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