Advice and assistance can only be provided by you acting as a solicitor [section 6 of the Legal Aid (Scotland) Act 1986]. Therefore, it cannot be provided by a solicitor acting in any other capacity such as a safeguarder or a curator ad litem.

Who is “the solicitor”?

Regulation 8 (1) states:

A solicitor shall give advice and assistance in pursuance of Part II of the Act only if he has satisfied himself that the client is eligible to receive advice and assistance under the provisions of the Act and of these Regulations”.

It must be you who is personally satisfied in terms of regulation 8 (1) that your client is eligible to receive advice and assistance and who gives that advice and assistance.  However, you can entrust certain aspects of the work to another solicitor in terms of section 31(2) of the Legal Aid (Scotland) Act 1986.  A grant of advice and assistance cannot be transferred to another solicitor except in  certain specific circumstances.

Second year trainees and unqualified members of staff

Only you (or counsel) can provide advice and assistance [Section 6 of the 1986 Act].

The following can grant advice and assistance:

  • Second year trainee who has been admitted as a solicitor and has a practising certificate can carry out all subsequent work as the solicitor.

The following cannot grant advice and assistance:

  • Someone who is unqualified, including first year trainees, or second year trainees who have not been admitted as solicitors

However, they can carry out certain tasks delegated to them by you and are paid at the lower rate.

A non-qualified member of your staff may carry out preliminary work to help the solicitor when they consider the application.

Safeguarders

A safeguarder, even if they  happen to be a practising solicitor, cannot provide advice and assistance to a child.  Advice and assistance can only be provided by you when acting as a solicitor [section 6 of the Legal Aid (Scotland) 1986 Act].  A safeguarder appointed by a children’s hearing or a sheriff can receive payment from Children 1st for work carried out.  We cannot pay any charges made by a safeguarder.

It is important to note, unlike the position for curators ad litem, a safeguarder cannot carry out a dual function and act as both a safeguarder to the child and a solicitor to the child.

A separate solicitor can be instructed by the safeguarder to act for the child.  However, in this circumstance, the safeguarder cannot apply for advice and assistance on the child’s behalf unless the child has sufficient capacity to instruct the safeguarder to do so.

Granting A&A to the Safeguarder

If the safeguarder instructs you to appear on their behalf, instead of the child’s behalf, then you can provide advice and assistance to them.  In this circumstance, it is the safeguarder’s personal resources that must be taken into account when you determine eligibility.  In addition, if you grant advice and assistance to the safeguarder then you will receive payment from the Fund for all work carried out.  The safeguarder cannot make a claim against the Fund in this circumstance.

Curators ad litem

A curator ad litem, even if they happen to be a practising solicitor, cannot provide advice and assistance to a child or incapable adult. In terms of section 6 of the 1986 Act advice and assistance can only be provided by you acting as a solicitor.

At present there are no statutory provisions, concerning remuneration of curators ad litem in children’s proceedings. Any charges made by a curator for work carried out solely in that capacity cannot be paid from the Legal Aid Fund or by Children 1st.

A curator ad litem is entitled to act in a dual capacity as both curator to the child or incapable adult and solicitor to the child or incapable adult. The curator can apply for advice and assistance on behalf of the child [regulation 6(2) of the Advice and Assistance (Scotland) Regulations 1996].

Where a curator acts in a dual capacity, we can only pay for:

  • Charges applicable to the provision of legal services by you acting as a solicitor under advice and assistance.

No charges can be made to the Fund for work that is:

  • Carried out in your sole capacity as a curator ad litem.
  • Initial investigation work done after your appointment to determine if your client requires legal representation.
Separate solicitor instructed

The curator ad litem can instruct a separate solicitor to act for the child even if they are also a practising solicitor. In this circumstance, you must take into consideration the child’s resources. If you grant advice and assistance to the child then it is you who can receive payment from the Fund for work carried out. The curator ad litem cannot claim against the Fund.

There is no statutory payment mechanism for common law curators ad litem.

Granting A&A to the Curator

If the curator instructs you to appear on their behalf, as opposed to the child’s, then you can provide advice and assistance to the curator if eligible. In this circumstance it is the curator’s personal resources that must be taken into account when you determine eligibility. In addition, if you grant advice and assistance to the curator then it is you who can receive payment from the Fund for the work. The curator ad litem cannot claim against the Fund in this circumstance.

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