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Children's legal assistance update
Thursday, Jul 11, 2013
Major changes came into force on 24 June 2013 that extend the scope and availability of legal assistance for children’s hearings.
Under the previous arrangements, no form of legal aid or advice and assistance was available to enable a solicitor or counsel to represent a child or an adult at a children’s hearing.
The Children’s Hearings (Scotland) Act 2011 (“the 2011 Act”) changes that and introduces a number of provisions relating to children’s legal assistance.
These can be summarised as follows:
- The establishment of a scheme for legal representation to be provided, subject to certain tests, at children’s hearings and associated court proceedings under the label “children’s legal assistance”.
- Transfer of responsibility for assessing entitlement to children’s legal aid from sheriffs to the Scottish Legal Aid Board. In some circumstances children’s legal aid will be made available automatically to a child without application of a legal merits or financial eligibility test.
- The establishment by the Board of a contributions regime for those who can afford to contribute to the costs of children’s legal aid.
- The establishment of a registration scheme and a code of practice and an associated scheme for quality assurance for solicitors who are paid under the children’s legal assistance scheme.
- Introduction by the Board of a duty scheme to ensure that a solicitor will be available to a child in certain prescribed hearings where that child is old enough to instruct a solicitor but does not already have their own solicitor of choice. In these circumstances legal aid will be automatically available to the child.
Although the new provisions came into effect on 24 June 2013 these will initially affect only new cases. Older cases will, for a period of time, continue to be dealt with under the previous statutory provisions.
As a result of these transitional arrangements we have seen only a small number of valid applications where SCRA has raised proceedings under the 2011 Act. However, we have received a number of applications which should not have been submitted to us because the proceedings had been raised by SCRA under the Children (Scotland) Act 1995 and as a result applications for Children’s Legal Aid should have been submitted to the court or applications for ABWOR should not have been submitted to us as it was not available for the cases in question.
It is important that you take care to check under which statutory provisions the case is proceeding as this will determine the extent to which children’s legal assistance is available, where you should direct applications for legal assistance and, if applying to the Board, which systems to use. This should be clear from the documents issues by SCRA but if you are in any doubt you should contact the reporter.
Our web site contains full details setting out some background to children’s hearings and explains the types of children’s legal assistance available and the tests to be applied.
You should note that our web site now contains a separate Key Card for Children’s Legal Assistance.
We will review the guidance we have prepared in light of our experience of the applications we receive and the issues that arise. For the reasons explained above relating to the transitional arrangements it is as yet too soon to usefully undertake such a review but we expect to have done so by the end of the calendar year. However, if you have any comments or queries in the mean time about our guidance please let us know.
We received a very large number of applications for registration for the duty scheme, with around 550 solicitors applying for registration.
We published the first tranche of the duty plan to run until 30 September 2013. We are currently working on the plan for the remainder of the period to 30June 2014 and will publish it in September 2013.
We would ask that if anything occurs to change your availability for the duty scheme that you tell us as soon as possible in order to allow us to make alternative arrangements.
If you have any queries about any of the above please contact: Joe Kelly, Head of Civil & Children’s Legal Assistance DD 0131 240 2031 or email firstname.lastname@example.org.
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