Applying for advice and assistance: choosing the correct category code, and advice and assistance applications on behalf of – or directly by – a child

All advice and assistance applications must be submitted on line within 14 days of beginning the advice and assistance.

If you do not apply in time, your account may be ineligible for payment.

You can grant advice and assistance to advise your client both before and after a children’s hearing.  If representation at a hearing is necessary you can apply to upgrade the application to Assistance by Way of Representation (ABWOR).

You need to answer all mandatory questions and if you do not you will not be able to submit the application.  Mandatory fields completed with for example “not applicable” or “not known” will be subject to further checking by us which could lead to delays in the processing of the application.

Choosing the correct category code

It is important you select the correct category code as selecting an incorrect category code can delay payment when your account is submitted.

Children’s Category Code of CHSA

The CHSA code covers work under the Children’s Hearings (Scotland) Act 2011, which deals with the Children’s Hearings System including:

  • Where social work department (SWD) seeks a Child Protection Order
  • Where a child is referred to the Reporter
  • All subsequent proceedings before a children’s hearings and related court proceedings

The CHSA code does not cover voluntary social work involvement, which falls under S25 of the Children (Scotland) Act 1995.

This CHSA code should be used where the matter concerns a referral to the children’s Reporter or where there is a realistic expectation that a Child Protection Order (CPO) will be sought imminently which will result in the Reporter’s involvement and the Children’s Hearing System.

If, your client wants to withdraw their voluntary consent to their child residing outwith their care and the SWD have advised that they will seek a CPO if this happens, then the CHSA category code should be used.

Civil Category Code of FAM

The FAM code covers civil family issues where there is no other obvious code available. It should be used where there is:

  • Social work involvement on a voluntary basis
  • No referral to the Reporter and/or no Compulsory Supervision in place for the child
  • No realistic prospect of any CPO being sought by the SWD

As an example, if you are giving advice to your client on the rights and obligations of the SWD where this involves their child who is residing in voluntary care then this FAM category code should be used.

Civil Category Codes of CNT and RES

The civil category codes of CNT and RES covers CONTACT and RESIDENCE. They attract templated increases and cannot be used for any matter that has been referred to a children’s Reporter, even where contact of a child is at issue.

These civil category codes cover private civil proceedings for S11 Orders under Part I of the Children’s Hearings (Scotland) Act 1995. If you use these category codes incorrectly you will not be paid for work carried out even where a template increase has been granted.

Quick guide: category code where social work involved with a child

Type of A&A work Cat code to use More information
Social work department seeks a Child Protection Order CHSA The CHSA code covers work under the Children’s Hearings (Scotland) Act 2011, which deals with the Children’s Hearings System
A child is referred to the Reporter
For all subsequent proceedings before a children’s hearings and related court proceedings
Social work involvement on a voluntary basis FAM The FAM code covers civil family issues where there is no other obvious code available
No referral to the Reporter and/or no Compulsory Supervision Order in place for the child
No realistic prospect of any CPO being sought by the SWD.
‘Fresh evidence’ proof, where previous grounds established under the 1995 Act require challenge CHC CHC code covered the Children (Scotland) Act 1995 Part II Chapters 2 and 3 only. No sections have any application now except ‘fresh evidence’ proofs.
Contact CNT Cannot be used for any matter that has been referred to a children’s Reporter even where contact/residence of a child is at issue.
Residence RES

Where someone makes an application on behalf of a child

When your client is a child the application may be made on their behalf by:

  • Any person having parental responsibilities within the meaning of section 1(3) of the Children (Scotland) Act 1995
  • Any person in whose care they are
  • A person acting for the purpose of any proceedings as their tutor or curator.

Where the child makes a direct application

It is the right of a child to apply on their own behalf or to authorise some other person to apply on their behalf.

Their right to apply for advice and assistance may arise by virtue of the Age of Legal Capacity (Scotland) Act 1991 (the 1991 Act), and the presumption contained in it, or otherwise.

If a child consults you on a children’s matter you must form a view of the child’s general understanding of what it means to instruct you.

  • If you consider a child under 12 to have a good general understanding, you may accept instruction from them
  • If you do not consider them to have a general understanding, you should look to a parent or other responsible person for instructions.

Where applicable, we are entitled to assume that you have satisfied yourself that the child has a general understanding of what it means to instruct you. We will register the application in the name of the child.

If you notify us of an advice and assistance grant made and signed by a child aged under 12, you will be asked if you are satisfied that they have a general understanding of what it means to instruct you. If you are not satisfied you will not be permitted to proceed . If you are we may query this with you at a later stage and ask you to provide further information in this respect.

Unless you are acting in a representative capacity, a very young child or baby cannot give direct instructions to you.

Covid-19

For the duration of the Covid-19 period, solicitors may not be able to meet clients in person.

This means that legal aid declarations cannot be signed by people. There may also be concerns about sharing pens with people.

If you are consulting with people remotely, or have any other health concerns such as sharing pens, we can accept applications without the client’s signature in these circumstances for the time being.

In the online application, you can sign on the client’s behalf, and tick the box that asks you to confirm you have obtained your client’s signature.  You can then say “coronavirus” in the additional information box at the end of the application.

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