The effective participation test

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This page provides guidance on the ‘effective participation’ test in ABWOR. It sets out the regulatory factors considered in ‘effective participation’ and how they are assessed. These include the complexity of the case; the nature of the legal issues involved; the ability of the person to consider or challenge documents or information, and to present their views in an effective manner. It also provides information on the availability of ABWOR where the client is not present.

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.

List of regulatory factors to be taken into consideration for a grant of ABWOR

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.

The complexity of the case, including the existence and difficulty of any points of law in issue

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.

The nature of the legal issues involved

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.

The ability of your client to consider and challenge any document or information in the hearing without your assistance

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.

Availability of ABWOR to a ‘Participation Individual’ and to a ‘Non Deemed Participation Individual’ under the 2011 Act

When fresh grants or applications for ABWOR are required for 2011 Act proceedings