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

Regulation 1(2) of the Advice and Assistance (Assistance by Way of Representation) (Scotland) Regulations 2003 provides that a relevant person has the meaning given in section 200 of the Children’s Hearings (Scotland) Act 2011 and includes a person deemed to be a relevant person by virtue of section 81(3), 160(4)(b) or 164(3)(a) of the 2011 Act.

In terms of regulation 3A(1)(b)(iv) of the Advice and Assistance (Assistance by Way of Representation) (Scotland) Regulations 2003 a relevant person 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.

If the relevant person is under 18 years of age, then they will not be subject to a financial and merits test. Simply advise us via an ABWOR application that you are providing ABWOR to the relevant person at one of the above hearings. The system will then automatically grant you an initial level of authorised expenditure of £550. In both of these court hearings, and where the applicant is over 18 years of age or older, you will apply:

• the financial test, with reference to the financial limits under section 8 of the 1986 Act, and
• the merits test of “effective participation”

In terms of regulation 3A(3) of the 2003 regulations, ABWOR can be provided only if you are satisfied that legal representation is needed to allow your client to effectively participate in the proceedings.

If you are satisfied that your client passes both tests, you can provide ABWOR to them.

You must tell us, via an ABWOR application, that you are providing ABWOR to your client and on what basis you have satisfied yourself that the effective participation test has been met.

When you submit the ABWOR application the system will give you an initial level of authorised expenditure of £550 for this hearing

This should give you sufficient cover to represent your client at the hearing.  If you need more than £550, you should apply 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.

We apply a retrospective check prior to payment of any ABWOR account you submit in these circumstances and where the relevant person is 18 years old or over.  This is to ensure you applied both the financial and merits tests correctly.  If we reach the conclusion that either or both tests have not been applied correctly, then payment of the ABWOR account may not be made, or, if made, may be recovered.

In terms of regulation 3A(1)(b)(i) of the Advice and Assistance (Assistance by Way of Representation) (Scotland) Regulations 2003 a relevant person 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 these situations, referred to as “specified hearings” and where the relevant person is under 18 years of age, there are no financial or merits tests to be applied. Simply advise us via an ABWOR application that you are providing ABWOR to the relevant person at one of the above hearings. The system will then automatically grant you an initial level of authorised expenditure of £550.

In all these situations, referred to as “specified hearings,” and where the relevant person is 18 years of age or older, you apply:

• the financial test, with reference to the financial limits under section 8 of the 1986 Act, and
• the merits test of “effective participation”

In terms of regulation 3A(3) of the 2003 regulations, ABWOR can be provided to a relevant person aged over 18 years only if you are satisfied that legal representation is required to allow that relevant person to effectively participate in the four specified proceedings described above.

Where you are satisfied your client passes both the financial and merits tests, you can provide ABWOR for these specified hearings. You must advise us, via an ABWOR application, that you are providing ABWOR to your client and set out the basis on which you have satisfied yourself that the effective participation test is met.

The system will then grant you an initial limit of authored expenditure of £550 for this hearing. You can also select a templated increase in authorised expenditure of £350. This should give you sufficient cover to represent your client at the hearing concerned

If you need more, you should apply for an increase explaining why this amount will be insufficient

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 the 2011 Act and the 2013 Regulations, children’s legal aid (and special urgency legal aid) is also available to a relevant person (and deemed relevant person) for an application to the sheriff under section 48 of the 2011 Act for variation or termination of a child protection order. It is up to you to decide which form of children’s legal assistance you want to provide to your client assuming they are eligible. If the relevant person is under 18 years of age, then they can receive ABWOR with no financial and merits test. However, they will have to satisfy a financial and merits test if they seek children’s legal aid for these court proceedings so this is something you should bear in mind.

In terms of regulation 3A(1)(b)(ii) of the Advice and Assistance (Assistance by Way of Representation) (Scotland) Regulations 2003, a relevant person can also be provided with ABWOR for

• any other children’s hearing convened under the Children’s Hearings (Scotland) Act 2011.

In all of these children’s hearings (referred to as “unspecified hearings”) and where the relevant person is under 18 years of age, there are no financial or merits tests to be applied. Simply advise us via an ABWOR application that you are providing ABWOR to the relevant person at one of the above hearings. The system will then automatically grant you an initial level of authorised expenditure of £550.

In all of these children’s hearings (referred to as “unspecified hearings”) and where the relevant person is aged 18 or over ABWOR is only available if your client satisfies the financial test and if you receive our prior approval to provide ABWOR

We apply the merits test of ‘effective participation’.

Any grant of ABWOR  for an unspecified hearing will continue in place for any deferred hearing and you do not need to apply the financial test again nor seek further prior approval from us for the next deferred hearing. This includes all hearings where interim orders are in place. You may need to submit an increase request for a deferred hearing if you have reached your current limit of expenditure. We grant £400 per deferred hearing unless you can explain to us why you require more than that. The grant of ABWOR will remain in place until a decision is made on a full Compulsory Supervision Order or the hearing is discharged.

In terms of regulation 3A (1) (b) (iii) of the Advice and Assistance (Assistance by Way of Representation) (Scotland) Regulations 2003, a relevant person (including someone who has already been deemed to be relevant) can also be provided with ABWOR at

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

In terms of regulation 3A (1)(b)(iiia) of the 2003 regulations a relevant person can also get ABWOR for

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

In the above situations, ABWOR is only available if your client satisfies the financial test and if you get our prior approval to provide this where the relevant person is aged 18 or over.  If they are under 18 years of age, then they will not be subject to any financial or merits tests. Simply advise us via an ABWOR application that you are providing ABWOR to the relevant person at a pre hearing panel listed above. The system will then automatically grant you an initial level of authorised expenditure of £550. If the relevant person is aged 18 or over, we apply the merits test of ‘effective participation’ to be satisfied that legal representation is needed to allow your client to effectively participate in the the pre hearing panel.

A separate application and grant of ABWOR is needed to represent your client at these pre-hearing panel meetings. If you are given prior approval from us or have ABWOR in place for a pre hearing panel, you will still need to admit your client to a separate grant of advice and assistance and require a fresh grant of ABWOR in place for the subsequent full children’s hearing unless the full hearing takes place on the same day as the pre hearing panel.

If the subsequent full children’s hearing is an unspecified hearing and the relevant person is 18 years or over, you will need our prior approval to provide ABWOR if you wish to represent your client at this full hearing.