Online Declaration/the applicant’s Declaration

Where an application for children’s legal aid is made for:

• A sheriff court proceeding under the 2011 Act (most commonly a S101 proof or S154 appeal against a panel hearing’s decision)
• An onward appeal from the sheriff to the Sheriff Appeal Court or Court of Session
• A S48 Application to the sheriff for variation or termination of a Child Protection Order
• Special Urgency legal aid associated with any of the above applications
• Representation of a child at certain specified hearings by the Duty solicitor providing automatic legal aid

you must always complete and retain on file a Declaration Form; namely the form headed ‘CHLA/LAO – 2011 Act .’

This Declaration Form (previously referred to as ‘the Mandate’)

• captures all the necessary applicant’s personal details
• gives the applicant’s permission to make the application and authority to us to make any necessary financial enquiries to verify the applicant’s stated financial position and
• gives the applicant’s permission for their details to be disclosed for the purposes of quality assurance checking.

The Declaration Form will enable you to record key information and capture the applicant’s and solicitor’s signatures.  All Declaration Forms must be:

• Signed and dated by the client – see guidance below
• Signed and dated by the nominated solicitor
• Completed in full.

You do not have to send us a copy of the Declaration Form but as part of our audits and quality checks, we will randomly verify that declarations have been completed and signed appropriately.

The Declaration Form must be completed and present in all files where clients are seeking legal assistance from public funds. If this is not done or the Form is incomplete you may not be paid for any work you carry out.

• An application for a child can only be made where you consider that the child is old enough to directly instruct you to act as their solicitor and where they want you to apply for legal aid.
• Where the child is making the application, they must sign the Declaration Form.
• Only where legal aid is being applied for on behalf of a child by a relevant person, Safeguarder or other representative, which may include a social worker, unit manager etc., can that person sign the Declaration Form on behalf of the child.
• A solicitor can never sign a Declaration Form on behalf of the child unless that solicitor is acting in a representative or fiduciary capacity, such as a Safeguarder.  It is important to note that if you are acting as a solicitor, on the direct instructions of the child, you are not acting in a “representative or fiduciary capacity”.  You are acting directly as that child’s solicitor and therefore require the child’s signature on the Declaration Form itself.
• If the child cannot write, leave the signature blank and you should note in the file that the contents of the Declaration Form have been fully explained to the child.
• The Declaration Form should only be signed by the child once it has been fully completed.  Where the child is instructing the nominated solicitor to act on their behalf and they are not present when the Declaration Form is being completed by the nominated solicitor, the Form should be then sent to the child by post, email or other means for signing.  The legal advice and assistance grant should not be submitted online until the signature of the child, or their representative where appropriate, has been obtained on the Declaration Form.
• The child, or their representative where appropriate, should never be asked to sign a blank or incomplete Declaration Form.
• The nominated solicitor must also and always sign the Declaration Form when it is completed as the child’s solicitor. A solicitor can never sign the Declaration Form on behalf of the child in addition to signing the Form as their solicitor. We do not therefore expect to see a solicitor’s signature where the child’s signature is asked for unless that solicitor is acting in a fiduciary or representative capacity for the child in addition to acting as their solicitor. This will not often happen as a solicitor cannot act as a child’s solicitor and Safeguarder at the same time.

• An application for an adult (usually a relevant person or person seeking that status) can only be made where you consider that the adult is capable of directly instructing you to act as their solicitor and where they want you to apply for legal aid.
• Where such an adult is making the application, they must always sign the Declaration Form.
• A solicitor can never sign a Declaration Form on behalf of the applicant unless that solicitor is acting in a representative or fiduciary capacity, such as the adult’s curator ad litem.  It is important to note that if you are acting as a solicitor on the direct instructions of the applicant you are not acting in a “representative or fiduciary capacity” unless you are appointed in some other capacity, such as a curator ad litem.  You are acting directly as that applicant’s solicitor and therefore require the applicant’s signature on the Declaration Form itself.
• If the applicant cannot write, leave the signature blank and you should note in the file that the contents of the Declaration Form have been fully explained to the applicant.
• If the applicant has someone acting in a fiduciary or representative capacity for them, such as a curator ad litem, then that person can sign the Declaration Form for the applicant.
• The Declaration Form should only be signed by the applicant once it has been fully completed.
•  Where the applicant is instructing the nominated solicitor to act directly on their behalf and they are not present when the Declaration Form is being completed by the nominated solicitor (for example where they live in England or are in prison and you have taken instructions over the telephone), the Form should be then sent to the applicant by post, email or other means for signing.  The legal aid application should not be submitted online until the signature of the applicant, or their representative where appropriate, has been obtained on the Declaration Form.
• The applicant, or their representative where appropriate, should never be asked to sign a blank or incomplete Declaration Form.

The nominated solicitor must also and always sign the Declaration Form when it is completed as the applicant’s solicitor. A solicitor can never sign an application Form on behalf of the applicant in addition to signing the Form as their solicitor. We do not therefore expect to see a solicitor’s signature where the applicant’s signature is asked for unless that solicitor is acting in a fiduciary or representative capacity for the applicant in addition to acting as their solicitor. We can only envisage this happening where the solicitor is acting as the applicant’s solicitor and curator ad litem in the proceedings