Background

The Children’s Hearings (Scotland) Act 2011 made major changes to:

  • The operation of children’s hearings.
  • The bodies responsible for its administration and management.
  • The relevant legal aid provisions.

One of the key changes introduced by the 2011 Act is the identification of certain defined limited circumstances where children’s legal aid is automatically available without the application of a merits or means test. Those circumstances are where:

  • There are proceedings before a sheriff for variation or termination of a child protection order.
  • The hearing follows the making of a child protection order.
  • A hearing or pre panel hearing considers it may be necessary to authorise the placement of a child in secure accommodation.
  • The hearing follows the child being apprehended by the police if it has been decided that criminal proceedings are not going to be pursued.

Provision is made in the legislation for Scottish Ministers to extend or restrict by regulations the circumstances in respect of which children’s legal aid is automatically available. Automatic legal aid is being made available through the introduction of a duty scheme which we operate.

Our responsibility for providing representation at these hearings is limited to providing cover for the child. It does not extend to other parties who may be involved. Representation for any such other parties who wish to be represented at emergency hearings will be done through ABWOR subject to their solicitor being satisfied that the applicant qualifies financially and that the merits tests for representation are met. In such cases the merits tests is not applied by us but by the solicitor acting. These grants will, however, be subject to back end checking broadly in line with the approach used in criminal ABWOR.