When fresh grants or applications for ABWOR are required for 2011 Act proceedings

If ABWOR is approved for a hearing and that hearing is deferred to a subsequent hearing then the grant of ABWOR will continue to that deferred hearing.

If the hearing issues:

• an interim Compulsory Supervision Order
• an interim variation to a Compulsory Supervision Order.

Then your grant of ABWOR will continue to the next hearing to consider this and at any further deferred hearings, until a decision relating to a full Compulsory Supervision Order is made, varied or terminated.

If the original hearing required our prior approval to provide ABWOR, you do not need to seek prior approval again for attendance at the deferred hearing.  The grant of ABWOR will last until a substantive/appealable decision has been made in respect of a full Compulsory Supervision Order.

You may need to submit an increase in authorised expenditure application to attend any deferred hearing.  In such cases, you would not need to:

• seek ABWOR again
• answer all the ‘Effective Participation’ questions.

You need to make it clear in your application for an increase:

• that this is a deferred hearing
• that a substantive decision regarding the full Compulsory Supervision Order has still to be made.

If you are not already providing ABWOR to your client and it is available to them it would be open to you to request an uplift to ABWOR in an increase in authorised expenditure online application.

If another hearing is convened by the Reporter for a different purpose after a substantive decision on a full Compulsory Supervision Order (and not an interim Compulsory Supervision Order or interim variation of a Compulsory Supervision Order) has been made (for example, an annual review hearing is called) then you require to admit your client to a fresh grant of advice and assistance and make a fresh application for ABWOR under that grant.

An “eighth working day” hearing is not a deferred “second working day” hearing that takes place after a Child Protection Order has been granted.  If you wish to represent your client at an “eighth working day” hearing, as set out in section 69 of the Children’s Hearings (Scotland) Act 2011, then the following is required:

• A fresh grant of advice and assistance
• Prior approval from us to provide ABWOR

This is the case even when you have provided ABWOR to your client at the second working day hearing.

Deferred Hearings under the 2011 Act

If you are granted ABWOR for the eighth working day hearing and the hearing grants an interim compulsory supervision order (ICSO) then the hearing will be deferred for no more than twenty-two days.

As no decision on a full CSO has been or can be made until the Statement of Grounds are established and remitted back to a hearing for consideration, any grant of ABWOR made for the eighth working day hearing will remain in place for these deferred ICSO hearings and until a full CSO is put in place for the child.

You may want to request an increase in authorised expenditure, if you want to continue to represent your client at these deferred hearings and the remit from court hearing, until such time as a full CSO in put in place.

Any review hearing would require a fresh application for ABWOR. This includes an early review hearing at the request of panel members which is not a deferred hearing.

If one of these orders is issued or continued or varied at a children’s hearing then such a decision is appealable to the sheriff court. However, such an Interim Compulsory Supervision Order will be granted because a decision to make, vary or terminate a final/full Compulsory Supervisor Order cannot be made at that stage. A decision regarding a final/full CSO (not an interim one) would then trigger a fresh grant of advice and assistance and ABWOR application, if appropriate, for any review hearing called thereafter.

ABWOR is available to you to represent your client at a children’s hearing that is considering a continuation or variation of an Interim Compulsory Supervision Order. You have to seek authority from us if you did not have ABWOR at the previous hearing where the Interim Compulsory Supervision Order was made, continued or varied.

Appeal of an ICSO under the 2011 Act

If an Interim Compulsory Supervision Order has been appealed to the sheriff court in terms of s154 of the Children’s Hearings (Scotland) Act 2011 and the sheriff has remitted the matter back to a children’s hearing in term of s156 of the 2011 Act then a decision on a full CSO has still not been made.

In such a case, if you had ABWOR at the previous hearing:

• A separate grant of ABWOR is not required to attend this remit hearing
• You may require to apply for an increase in authorised expenditure if you have reached your current limit

If you did not have ABWOR at the previous hearing:

• You can make an application to provide ABWOR at this remit hearing

No ABWOR is available for an extension hearing of an Interim Compulsory Supervision Order before the sheriff. Additionally, you cannot seek an increase in authorised expenditure to represent your client in the sheriff court for this purpose. Children’s Legal Aid is available for such a court hearing.

ABWOR is available for a pre hearing panel where:

• a determination regarding someone’s relevant person status is to be made
• someone (a NDPI) is seeking participation rights at a full children’s hearing.

A pre hearing panel (PHP) takes place before a full children’s hearing and accordingly separate grants of advice and assistance and application for ABWOR requires to be made if you wish to represent your client at both these hearings if they are taking place on separate dates.

The reasons separate applications for ABWOR are required are:

• grants can only continue for deferred hearings. A children’s hearing that takes place after a pre-hearing panel is not a deferred hearing
• if you have been granted ABWOR to represent a non-deemed relevant person seeking relevant person status at a pre-hearing panel and your client is not held to be relevant then they do not have the regulatory right to attend and apply for ABWOR to attend the full children’s hearing
• if you have been granted ABWOR to represent a child or a relevant person at a pre-hearing panel then the “Effective Participation” test has been satisfied for it but it may be that this test will not be satisfied for the subsequent full children’s hearing. What falls within the definition of a relevant person or whether or not someone should be awarded participation rights at a full hearing can, in certain circumstances, be seen as legally complex and something which may require representation by a solicitor. However this test may not be satisfied for the full hearing for example, if the child or relevant person agrees with the social work recommendation and where there do not appear to be any other legally complex matters.

Each application is looked at on its own facts and circumstances. Satisfying the “Effective Participation” Test for the pre-hearing panel does not necessarily mean that the “Effective Participation” test is met for the children’s hearing itself.

Our prior authority for ABWOR is always needed to attend a pre-hearing panel. However, if the full children’s hearing is a specified hearing and you represent a child or relevant person you do not need to obtain our prior authority to provide ABWOR at the specified hearing.

A pre hearing panel cannot take place on the same day as a full children’s hearing, which means that you should have sufficient time to seek ABWOR for both hearings. If there is no time to fix a pre hearing panel on a separate date and the Reporter therefore arranges for the pre hearing matters to be determined at the beginning of the full hearing then, only one application for ABWOR is required. You should explain this when applying for ABWOR to attend an unspecified children’s hearing and when answering the associated Effective Participation questions in the application.