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:
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.
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:
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.
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:
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.
Availability of Advice and Assistance
This page includes a list of example questions you may want to ask clients when assessing their financial eligibility for advice and assistance, and relevant information you should see. It includes questions to ask child applicants; married or cohabiting applicants; and applicants with more than one dwelling house. It also covers the issue of deprivation of resources, and what to do if the client is unable to answer these questions at a first meeting.