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Children’s legal aid – the solicitor and applicant declaration form

You must always complete and retain the children’s legal aid declaration form when applying in relation to:

A sheriff court proceeding under the 2011 Act most commonly a S101 proof or S154 appeal against a panel hearing’s decision).
An onward appeal from the sheriff to the Sheriff Appeal Court or Court of Session.
A S48 Application to the sheriff for variation or termination of a Child Protection Order.
Special Urgency legal aid associated with any of the above applications.
Representation of a child at certain specified hearings by the Duty solicitor providing automatic legal aid.

This declaration form (previously referred to as ‘the Mandate’)

Captures all of your client’s personal details that you need to make an application for legal aid.
Gives your client’s permission to make the application and authority to us to make any necessary financial enquiries to verify their stated financial position.
Gives your client’s permission for their details to be disclosed for the purposes of quality assurance checking.

The declaration form allows you to record key information and capture you and your client’s signatures. All declaration forms must be:

Signed and dated by your client – see guidance below
Signed and dated by you
Completed in full.

You do not have to send us a copy of the declaration form. However we will randomly verify that declarations have been completed and signed appropriately as part of our audits and quality checks.

The declaration form must be completed and present in all files where clients are seeking legal assistance from public funds. If this is not done or the form is incomplete you may not be paid for any work you carry out.

Where the applicant is a child:

An application can only be made when you consider that the child is old enough to directly instruct you to act as their solicitor and they want you to apply for legal aid on their behalf.
The child they must sign the declaration form when they are making the application.
A Safeguarder or other representative (a social worker, unit manager etc) can only sign the declaration form when legal aid is being applied for on behalf of the child.
A solicitor can never sign a declaration form on behalf of the child unless that solicitor is acting in a representative or fiduciary capacity, such as a Safeguarder. It is important to note that if you are acting as a solicitor, on the direct instructions of the child, you are not acting in a “representative or fiduciary capacity”. You are acting directly as that child’s solicitor and therefore always require the child’s signature on the declaration form itself.
If the child cannot write, leave the signature blank and you should note in the file that the contents of the declaration form have been fully explained to them.
The declaration form should only be signed by the child once it has been fully completed. If the child is instructing the nominated solicitor to act on their behalf and they are not present when the declaration form is being completed, it should be sent to the child for signing. The application not be submitted on Legal Aid Online until the signature of the child, or their representative where appropriate, has been obtained.
The child, or their representative where appropriate, should never be asked to sign a blank or incomplete declaration form.
The nominated solicitor must also and always sign the declaration form when it is completed as the child’s solicitor. You can never sign the declaration form on behalf of the child in addition to it as their solicitor. We do not therefore expect to see a solicitor’s signature where the child’s signature is asked for unless they are acting in a fiduciary or representative capacity for the child in addition to acting as their solicitor. This will not often happen as a solicitor cannot act as a child’s solicitor and safeguarder at the same time.

Where the applicant is an adult:

An application for an adult (usually a relevant person or person seeking that status) can only be made when you consider that they are capable of directly instructing you to act as their solicitor and they want you to apply for legal aid on their behalf.
They must always sign the declaration form when making an application.
You can never sign a declaration form on behalf of the applicant unless you are acting in a representative or fiduciary capacity, such as the adult’s curator ad litem. It is important to note that if you are acting as a solicitor on the direct instructions of the applicant you are not acting in a “representative or fiduciary capacity” unless you are appointed in some other capacity, such as a curator ad litem. You are acting directly as that applicant’s solicitor and therefore require the applicant’s signature on the declaration form itself.
Leave the signature section blank if the applicant cannot write. You should note in the file that the contents of the declaration form have been fully explained to the applicant.
If the applicant has someone acting in a fiduciary or representative capacity for them, such as a curator ad litem, then that person can sign the declaration form for them.
The declaration form should only be signed by the applicant once it has been fully completed.
The declaration form should be sent to the applicant for signing if they are not present when it is being completed and signed by you. You need to do this if they are instructing you as the nominated solicitor to act directly on their behalf. This could occur in situations where they live in England or are in prison and you have taken instructions over the telephone. The application should not be submitted on Legal Aid Online until the signature of the applicant, or their representative where appropriate, has been obtained.
The applicant, or their representative where appropriate, should never be asked to sign a blank or incomplete declaration form.

The nominated solicitor must also and always sign the declaration form when it is completed as the applicant’s solicitor. A solicitor can never sign an application form on behalf of the applicant in addition to signing it as their solicitor. We do not therefore expect to see your signature where the applicant’s signature is asked for unless you are acting in a fiduciary or representative capacity for them in addition to acting as their solicitor. We can only envisage this happening where you are acting as the applicant’s solicitor and curator ad litem in the proceedings.