Availability of ABWOR to the subject child and other applicants who are under the age of 18.

This page includes guidance on the availability of ABWOR for proceedings under the Children’s Hearings (Scotland) Act 2011 and the Age of Criminal Responsibility (Scotland) Act 2019, when being provided directly to a child who is the subject of the 2011 Act or 2019 Act proceedings or if your client is under 18 years of age in 2011 Act proceedings

It explains you need to be satisfied that the applicant can give you direct instructions and sets out the various contexts in which ABWOR may be available to them.

ABWOR is available under the 2011 Act for the following:

• applications for Child Assessment or Protection Orders
• a range of specified and unspecified hearings
• pre-hearing panel meetings where a S81 determination is to be made

ABWOR is available under the 2019 Act for the following:

• Part 4 Orders before the Sheriff
• related appeals before the Sheriff Appeal Court

There is no means and no merits tests to be applied for all applicants , including the subject child, that are under 18 years of age for the 2011 Act proceedings mentioned above.

If you want to provide ABWOR to any applicant that is under 18 years of age, including the subject child, you need to be satisfied that they can give you direct instructions.

Whether they are younger than 12, or 12 and over, it is for you to be satisfied that they can give you such instructions and understand what is involved in doing so.

We will register the application in the name of the subject child, or other applicant type if they are under 18 years of age, if advice and assistance has been granted. In such cases, we will assume you are satisfied that the applicant, who is under 18 years of age, has a good understanding of what it means to instruct you.

The above applies to an applicant who is  not the subject child of the proceedings in question but may fall within the other applicant types that are entitled to ABWOR. For example, a Participation Individual (a sibling or someone that can establish a sibling like relationship)

In terms of regulation 3A(1)(a)(iv) of The Advice and Assistance (Assistance by Way of Representation) (Scotland) Regulations 2003 the subject child can be provided with ABWOR where:

• an application is made to the sheriff by a local authority under section 35 of the Children’s Hearings (Scotland) Act 2011 for a child assessment order, and
• an application is made to the sheriff by a local authority under section 38 of the Children’s Hearings (Scotland) Act 2011 for a child protection order.

There is no requirement for financial or merits tests. Simply advise us via an ABWOR application that you are providing ABWOR to the subject child at one of the above hearings. The system will then automatically grant you an initial level of authorised expenditure of £550.

This should give you sufficient cover to represent the subject child at the hearing.

If you need more than £550, you should submit an online application for an increase explaining why £550 will be insufficient.

If you need to do work  likely to cost more than £550 urgently, you can contact us by telephone to seek an urgent increase.

In terms of regulation 3A (1)(a)(i) of the Advice and Assistance (Assistance by Way of Representation) (Scotland) Regulations 2003, the subject child can be provided with ABWOR where:

• an application is made to the sheriff under section 48 of the Children’s Hearings (Scotland) Act 2011 for variation or termination of a child protection order (sheriff court proceeding).
• a “second working day hearing” is arranged – this is a children’s hearing arranged in relation to a child by virtue of section 45 or 46 of the 2011 Act.
• a children’s hearing or a pre-hearing panel considers that it might be necessary to make a compulsory supervision order including a secure accommodation authorisation and/or a movement restriction condition in relation to a child.
• a children’s hearing to which section 69(3) of the 2011 Act applies is arranged for a child – this is a hearing where a child appears from a place of safety after the alleged commission of an offence.

In all of these situations, referred to as “specified hearings”, there is no financial or merits test to be applied where your client is the subject child.

You simply advise us via an ABWOR application that you are providing ABWOR to the subject child at one of these specified hearings. The system will then grant you an initial limit of authored expenditure of £550 for this hearing.

This amount should give you sufficient cover to represent your client at the hearing.  If you need more than £550, you should submit an application for an increase explaining why £550 will be insufficient.

If you need to do work likely to cost more than £550 urgently, you can contact us by telephone to seek an urgent increase.

If any of the above specified children’s hearings then progresses to another specified hearing, then, in terms of regulation 3A (4)-(6) of the Advice and Assistance (Assistance by Way of Representation) (Scotland) Regulations 2003,  the grant of ABWOR will last until the subject child is placed on a full Compulsory Supervision Order (CSO) or until a hearing is discharged. You do not require to apply again for ABWOR. You can submit increase requests for further expenditure at the next hearing. We grant £400 per hearing unless you can demonstrate why more would be required.

In terms of regulation 3A(1)(a)(ii) of the Advice and Assistance (Assistance by Way of Representation) (Scotland) Regulations 2003, the subject child can also be provided with ABWOR at any other children’s hearing convened under the Children’s Hearings (Scotland) Act 2011, referred to as “unspecified hearings”.

In all these other children’s hearings, ABWOR is available to the subject child without having to meet any financial test or merits test.

You simply advise us via an ABWOR application that you are providing ABWOR to the subject child at one of these hearings. The system will then grant you an initial limit of authorised expenditure of £550 for this hearing. Once ABWOR has been granted with the initial expenditure limit of £550, we will consider any further increase requests submitted. This will usually be where the hearing has been deferred to another date. We generally allow further expenditure of up to £400 per hearing. The grant of ABWOR will last until the subject child is placed on a full Compulsory Supervision Order (CSO) or until a hearing is discharged.

In terms of regulations 3A(1)(a)(iii) of the Advice and Assistance (Assistance by Way of Representation) (Scotland) Regulations 2003, the subject child can also be provided with ABWOR at

• a pre-hearing panel at which a determination under section 81 of the 2011 Act is to be made about an individual who is seeking to be deemed a relevant person (and to whom section 79(2)(a)(i) of the Children’s Hearings (Scotland) Act 2011 refers).

In terms of regulation 3A(1)(a)(iiia) of the 2003 regulations the subject child can also be provided with ABWOR at

• a pre-hearing panel at which a determination under section 81A of the 2011 Act is to be made about ending someone’s relevant person’s status (and to whom section 79(5A)(a)(i) of the 2011 Act refers).

In terms of regulation 3A (1) (a) (iiib) of the 2003 regulations an individual can also be provided with ABWOR at

• a pre- hearing panel at which a determination that they be deemed a participation individual to take part in the full hearing to discuss contact with the subject child.

In the above situations, ABWOR is available to the subject child, and to an individual if they are under 18 years of age, without having to satisfy any financial or merits test. If the individual is over 18 years of age, then they will be subject to a financial and merits test. We apply the merits test and must be satisfied that legal representation is required to allow your client to effectively participate in the proceedings (this is known as the “effective participation” test).

A separate grant of advice and assistance (and associated ABWOR application) is required to represent your client at these pre-hearing panels if they are taking place on a separate day before the full children’s hearing.

You must submit a separate grant of advice and assistance (and associated ABWOR application) if you wish to continue to represent the applicant at the subsequent full children’s hearing taking place on a separate date.