Financial eligibility of children for advice and assistance (non-criminal matters)

The Advice and Assistance (Scotland) Amendment Regulations 2010 made changes to the assessment of your client’s financial eligibility for advice and assistance if they fall within the definition of a child. The financial resources of any person who owes an obligation of aliment (POA) to a child client, are to be treated as part of the child’s own resources unless it would be unjust or inequitable to do so.

A “child” means a person [Section 1 (5) Children (Scotland) Act 1995]:

• Under the age of 18 years
• Over that age and under the age of 25 years who is reasonably and appropriately undergoing instruction at an educational establishment, or training for employment or for a trade, profession or vocation.

For this provision the obligation of aliment applies to:

• A father or mother to his or her child
• A person to a child (other than a child who has been boarded out with him by a local or other public authority or a voluntary organisation) who has been accepted by him as a child of his family.

It is for you to decide whose resources, in addition to those of the child itself, must be included in the assessment of financial eligibility. You must decide if it would be unjust or inequitable in the particular circumstances of the case to treat the resource of any persons(s) with an obligation for aliment as the child’s. Details must be given as to why this conclusion had been reached.

The following are examples of situations where we could consider the aggregation of a POA’s resources to be unjust or inequitable:

• If your client is child and is living independently from the POA’s
• If the application is for the appointment of a Guardian under the Adults with Incapacity (Scotland) Act to a child over the age of 16, they are still treated as a child for the purposes of the legal aid regulations.
• If the POA has a contrary interest in the case then that person’s resources should be discounted. The information provided must demonstrate that the child and the POA are likely to be seeking a different outcome to any remedy that might arise from the advice being sought.
• If the child is estranged from the POA or has had little or no contact for a reasonably long period of time, and is unaware of the POA’s current address.

• If your client is aged 18 to 24 has left the home of the POA(s) to set up on his/her own [section 1(5)(b) Children (Scotland) Act 1995]. In the circumstances that your client has returned to live with a POA due to financial difficulties or the breakdown of a relationship consideration can be given to assessing eligibility based on your client’s resources only.
• If your client who otherwise fits the definition of a child is or has been married
• If the POA has a partner or spouse their resources would fall to be aggregated with the POA and those of the child client.
• If the child does not wish it to be disclosed to either POA that they are seeking separate legal representation. Some evidential support for this position must be provided together with clear detailed reasons for the stance being adopted by the child.
• If there is a history of domestic violence between the POA and the parent caring for the child and they suspect that any approach for the financial information might give rise to further problems. Evidence should be provided.
• We understand that some may have degrees of sensitivity about information regarding their resources being made known to the child. It is important, therefore, that you inform them of this at the outset. They can decide whether to supply the information or not.
• The parent owing an obligation of aliment to your client may be involved in litigation themselves concerning matters such as residence or contact which would make the parent with care very reluctant to contact the other POA for financial information.

Accounts may be opened in the name of the guardian for the child’s benefit, or if opened in the name of the child (typically from the time they reach the age of 7) the guardian may be authorised to operate the account on behalf of the account holder child.

In these circumstances, the guardian holds the monies in the account on trust for the child, as the beneficial owner of the capital.

Whilst the guardian may be the legal owner of an account, any capital in the account belongs to the child. If money held is for another child other than your client, it should be disregarded.

There may be a risk of capital being transferred from an account or investment of your client into an account of their child, purely for financial assessment purposes. Each case would have to be looked at on its own set of facts. Where large tranches of money are moved into the child’s account just prior to an application for legal aid, it is likely to constitute deprivation of resources.

You may have to make further enquiries about the information submitted by the POA.