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.

You can only provide ABWOR to a relevant person at:

  • A specified hearing
  • A section 35 application for a child assessment order
  • A section 38 application for a child protection order

where you are satisfied that legal representation is required to allow that person to effectively participate in those proceedings.

There are regulatory factors set out in regulation 14 of the 2003 Regulations to allow us to ensure effective participation. These factors must be taken into account by you and us is deciding if representation is needed to effectively participate. These factors do not exclude you or us from taking other factors into account.  What is needed is for us both 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 which can include the applicant’s current and past living arrangements such as whether or not they are or have been in Local Authority care.

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.

Client not present at hearing

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:

  • Then this test has not been satisfied
  • They need no legal assistance

It is important to note that:

  • A 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 child’s attendance.

Where your client has been excused 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 an emergency hearing and your client is unable to attend the hearing due to some physical incapacity e.g. 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.

List of regulatory factors to be taken into consideration

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

The application must address what complexities there are in the case that make it appropriate for you, as a solicitor, to be the one who provides legal representation.

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,

There needs to be apparent that there is something in the circumstances of the particular case from the standpoint of your client that means they require representation from you.

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 is:

  • So ordinary or straightforward that your client could understand it and put forward his/her own views to the panel members. 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 the children’s hearing itself 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 the 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 (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 the application you should:

  • Indicate what particular document or information requires you (rather than any other representative) to be the one to consider and challenge it at the children’s hearing
  • 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, such as the allocated social worker, 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 and why you must challenge them at the children’s hearing

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.

The ability of your client to present his or her views in an effective manner without your assistance

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:

  • An interpreter
  • 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 help then, in support of your 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.

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