Appointment and payment of safeguarders where the safeguarder is a practicing solicitor

Where a safeguarder has been appointed in Children’s Hearings (Scotland) Act 2011 proceedings, and happens to be a practising solicitor then that safeguarder cannot also act as a solicitor for the child.

If you as a safeguarder conclude that your client the child, needs legal representation, you must instruct another solicitor to represent them.  This applies equally if you are not a practising solicitor where another solicitor can be instructed to represent the child.

In an application for legal aid:

  • The nominated solicitor will be the name of the solicitor who has been instructed by the safeguarder to represent the child
  • The name of the nominated solicitor cannot be the same name as the safeguarder appointed
  • The safeguarder can make the legal aid application on behalf of the child, and the safeguarder’s details will be inserted in the representative section of the application form

If legal aid is granted, the nominated solicitor instructed by the safeguarder to represent the child can send us an account.  We will meet the cost of all reasonable and necessary work carried out by the solicitor acting for the child.

However, we will not pay for work carried out by the safeguarder – they should obtain payment from Children 1st.

Payment of a Safeguarder who instructs their own solicitor to act for them

You, as a safeguarder, can instruct a solicitor to represent you, as opposed to the child.

If you are also a practising solicitor, you can act in both of these capacities.

However, children’s legal aid is only available to:

  • A child
  • A relevant person
  • A deemed relevant person
  • A person seeking to be deemed relevant
  • A section 126 individual.

If acting as a Safeguarder and you believe that you require legal representation, you should contact Children 1st about this.  They will decide if a payment will be made available from their own funds. Any such decision and payment does not fall within the Legal Aid Scheme and Fund. We cannot not pay for this representation.

Acting as a safeguarder to the child and separate solicitor acting as solicitor to the child

There is nothing to prevent a safeguarder, whether a practising solicitor or not, from instructing a solicitor to act for a child.

In such a circumstance, the solicitor instructed will make the application for legal aid to us.  The Safeguarder’s details can be inserted in the “representative” section and they can, in that circumstance, sign the application on behalf of the child.

We must then apply the statutory merits tests [sections 28D(3) and(5) of the Legal Aid (Scotland) Act 1986] to determine:

  • Whether it is in the best interests of the child that legal aid be granted
  • If it is reasonable in the particular circumstances of the case that the child should receive children’s legal aid.

Therefore, the nominated solicitor making the application will have to satisfy us that these tests have been met.  A real requirement for legal representation will require to be demonstrated before legal aid will be granted.

If legal aid is granted then the nominated solicitor can send us their account when the case concludes.  We will pay for all reasonable and necessary work that the nominated solicitor carried out.

As stated, none of the work carried out by the Safeguarder will be paid from the Fund, they  should seek payment from Children 1st.

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