The effective participation test

In terms of regulation 13 (3A) of The Advice and Assistance (Assistance by Way of Representation) (Scotland) Regulations 2003 we can only approve the provision of ABWOR for attendance at a children’s hearing where we are satisfied that the legal representation is required to allow the child, the relevant person or individual to effectively participate in the hearing.

There are four regulatory factors set out in regulation 14 of the 2003 Regulations to allow us to ensure that the effective participation test has been met. These factors must be taken into account by you and us in deciding if representation is needed to effectively participate. These factors do not exclude you or us from taking other factors into account. We need to be satisfied that there are reasons for your client to get representation at a hearing taking into consideration the ethos of the hearing system and its  relatively informal and non-adversarial nature.

It is important to note that the 2003 regulations do not suggest that:

• regulatory factors are listed in any particular order of importance or priority
• if any particular factor, or combination of them, is present the test of effective participation is satisfied
• if all the factors are satisfied, ABWOR must be made available.

You, or we, must consider all the circumstances of the particular case.

If you grant ABWOR to your client on the basis of a non-regulatory factor then you must tell us about this in your ABWOR application.

The whole premise of the effective participation test is that the child or adult in question requires a solicitor to participate effectively in the hearing itself.

If your client chooses not to be present at the hearing and they have not been excused in advance from attending:

• then this test has not been satisfied
• they need no legal assistance.

It is important to note that:

• the subject child or relevant person who has been notified of a hearing must attend the children’s hearing unless their attendance is dispensed with
• it is a criminal offence if a relevant person who is required to attend a hearing fails to do so
• a hearing may issue a warrant to secure the subject child’s attendance.

However, where your client has been excused of their statutory duty to attend the hearing in terms of S74(3)(a) of the Children’s Hearings (Scotland) Act 2011 and they then choose not to attend the hearing, if they have been able to give you full instructions about their position, the effective participation test could be met in such circumstances.

If there is a hearing and your client is unable to attend the hearing due to some physical incapacity, for example, being in hospital, and if it can be shown that they would have been at the hearing but for their physical incapacity then the effective participation test could also be met in these circumstances.

You, or we, must take into account the following factors:

• the complexity of the case, including the existence and difficulty of any points of law in issue
• the nature of the legal issues involved
• the ability of your client to consider and challenge any document or information in the hearings or proceedings without your assistance
• the ability of your client to present his or her views in an effective manner without your assistance.

Your ABWOR application must address whether any of these factors apply in the case that makes it appropriate for you, as a solicitor, to be the one who provides legal representation to the applicant.

You should address:

• why you consider the case will be complex
• explain what the actual complexities are
• any specific complex points of law.

A complex case may involve:

• medical reports that contain complex medical diagnosis
• psychiatric reports that contain complex psychiatric diagnosis
• multiple, lengthy reports from professional experts
• conflicting reports from social workers and/or other professional experts.

You must consider whether the children’s hearing or pre-hearing panelais:

• so ordinary or straightforward that your client could understand it and put forward their own views to the panel members or sheriff. Panel members are trained in communicating with children and adults and the ethos of a children’s hearing is to obtain views in as informal setting as can be possible;
• one where a legal argument must be put forward at it rather than in court at a later stage.  A children’s hearing cannot decide on disputed issues of fact and this would be for the courts.

We will not, generally, conclude that the following facts alone will satisfy us that the case is complex:

• the fact that statement of grounds will be put to your client at the hearing
• the fact that the decision of the hearing is likely to be appealed to the sheriff
• where your client agrees with the social work department’s recommendation, for example, to terminate the Compulsory Supervision Order.

If you wish to rely on this factor, in support of your ABWOR application you will require to:

• explain what the legal issues involved actually are
• explain why your client requires your representation to put forward such legal issues at the children’s hearing or pre-hearing panel (and not at a later stage at court) since a children’s hearing cannot decide on disputed issues of fact as this would be a matter for court.

The legal issues may include:

• the existence of criminal proceedings relating to the statement of grounds
• the likelihood that criminal proceedings relating to the statement of grounds will be raised
• issues to be raised regarding the legal process followed by agencies/authorities involved
• issues to be raised regarding the implementation of orders by the local authority.

If you want to rely on this factor, you should note that it is not at all unusual for fairly lengthy social work reports, for example, to be placed before a children’s hearing. This fact alone will not mean this factor is satisfied.

If you want to rely on this factor in support of your ABWOR application you should:

• indicate what particular document or information requires you (rather than any other lay representative, such as an advocacy worker) to be the one to consider and challenge it at the children’s hearing or pre-hearing panel
• submit this actual document or information (highlighting the relevant parts) as an attachment to the ABWOR application.

It is key that there has to be an issue which is such that your client needs legal representation.

You should also address:

• why another person or agency cannot explain these documents or information to your client prior to the hearing and assist in challenging them
• why you cannot explain these documents or information to your client prior to the hearing or pre-hearing panel and why you must challenge them at the children’s hearing or pre-hearing panel itself.

The fact that your client does not agree with what is written in a report is not sufficient as this is not unusual in hearings and it does not necessarily mean that legal representation is needed.

It should be noted there may be other persons or bodies, other than a legal representative, who can assist your client to present their views in an effective manner at the children’s hearing.

These could include:

• children’s rights officer
• advocacy worker
• social worker
• safeguarder
• other lay representative.

If you wish to rely on this factor indicating that your client needs your legal help then, in support of your ABWOR application, you should let us know your client’s views and why they cannot effectively present them without your specific assistance, rather than the assistance of anyone else.