Availability of ABWOR to a ‘section 126 individual’

Page contents:

Definition of 'section 126 individual' under the 2011 Act

A ‘section 126 individual’ is someone to whom S126 (2)(b) or (3) of the Children’s Hearings (Scotland) Act 2011 Act applies, is  an individual who is not a relevant person and:

  • is named on a contact order which regulates contact between the child and that individual
  • is named on a permanence order which specifies arrangements for contact between the child and that individual, or
  • claims that they have a significant involvement in the upbringing of the child.

 

 

A 'S126 hearing' under the 2011 Act

A ‘S126 Hearing’ is a rare type of children’s hearing that is held to review a contact direction on a Compulsory Supervision Order (CSO). It can only take place within five working days of a hearing, which makes, continues or varies a CSO so as to contain a contact condition.

This type of hearing is triggered specifically by:

  • the existence of a right of contact to a “S126 individual” under a separate civil order such as an order for contact under section 11 of the Children (Scotland) Act 1995
  • an individual claiming that they have a significant involvement in the upbringing of the child.

A ‘S126 individual’ can be provided with ABWOR for any hearing convened which relates to them.

ABWOR will only be available if your client satisfies the financial test under section 8 of the Legal Aid (Scotland) Act 1986 and if you receive our prior approval for this.

We apply a merits test and need to be satisfied that legal representation is required to allow the ‘section 126 individual’ to effectively participate in the proceedings (the ‘effective participation’ test)

If you want to provide ABWOR to your client you need to submit an ABWOR application.  If the hearing is deferred to a further hearing then ABWOR continues and you do not need to apply again.

You should submit an ABWOR increase application, if you need an increase in expenditure.

Availability of ABWOR to relevant persons and deemed relevant persons in 2011 Act proceedings
Availability of ABWOR to a ‘non-deemed relevant person’ under the 2011 Act

In this section

Assistance by Way of Representation for children’s proceedings

General scope of ABWOR in proceedings under the 2011 Act and Part 4 of the 2019 Act

Find out the definition of ABWOR and what it covers, including the position on written submissions and taking witness statements or precognitions.

Assistance by Way of Representation for children’s proceedings

Templated increases in authorised expenditure for certain hearing types where ABWOR has been granted under the 2011 Act

Find out when a templated increase in expenditure is available under ABWOR for 2011 Act cases including what work it covers.

Assistance by Way of Representation for children’s proceedings

Availability of ABWOR to the subject child

Read about when you may provide ABWOR directly to a child in various proceedings under the 2011 and 2019 Acts, including what you must satisfy before doing so.

Assistance by Way of Representation for children’s proceedings

Availability of ABWOR to relevant persons and deemed relevant persons in 2011 Act proceedings

Find out about the availability of ABWOR to relevant persons and deemed relevant persons in various 2011 Act proceedings, and who applies the mean/merits tests.

Assistance by Way of Representation for children’s proceedings

Availability of ABWOR to a 'non-deemed relevant person' under the 2011 Act

Read about the availability of ABWOR to 'non-deemed relevant persons', a definition of this term and what happens when a person is 'undeemed'.

Assistance by Way of Representation for children’s proceedings

Availability of ABWOR to a ‘Participation Individual’ and to a ‘Non Deemed Participation Individual’ under the 2011 Act

Section 25 of the Children (Scotland) Act 2020 introduces rights of participation (‘participation rights’) in children’s hearings for certain individuals

Assistance by Way of Representation for children’s proceedings

The effective participation test

This page provides guidance on the ‘effective participation’ test in ABWOR. It sets out the regulatory factors considered in ‘effective participation’ and how they are assessed. These include the complexity of the case; the nature of the legal issues involved; the ability of the person to consider or challenge documents or information, and to present their views in an effective manner. It also provides information on the availability of ABWOR where the client is not present.

Assistance by Way of Representation for children’s proceedings

When fresh grants or applications for ABWOR are required for 2011 Act proceedings

This page includes information on when you need to apply for a fresh grant of ABWOR, and when you can continue to provide ABWOR for a hearing under an existing grant. It also sets out our position on whether fresh applications are needed for eighth working day hearings; interim compulsory supervision orders; and pre-Hearing panels.

Assistance by Way of Representation for children’s proceedings

When fresh grants of advice and assistance (not ABWOR) are required in 2011 Act Proceedings

Read our guidance on when fresh grants of advice and assistance (not ABWOR) are required, as well as the appropriate category code.

Assistance by Way of Representation for children’s proceedings

Examples of when you should make a fresh grant or application for ABWOR or where an increase request is sufficient for the next hearing in 2011 Act proceedings

View hypothetical examples of when you would make a fresh grant or application for ABWOR or where an increase request is sufficient for the next hearing.