Availability of ABWOR to a ‘section 126 individual’

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’ 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.

If the applicant is 18 years or over, then ABWOR will only be available if they can satisfy 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 applicant is under 18 years of age, then ABWOR will be granted without any financial or merits test.

When ABWOR is granted, you will be given an initial level of authorised expenditure of £550 for the hearing. If you require more then you will require to submit an increase request explaining why more is required.

If the hearing is deferred to a further hearing, then ABWOR continues in place, and you do not need to apply again.

You should submit an ABWOR increase application, if you need an increase in expenditure for the next deferred hearing. We grant £400 per hearing unless you can explain to us why you may require more than this amount.

The grant of ABWOR will continue in place until a decision is made on a full (not interim) Compulsory Supervision Order in place for the subject child.