Section 48 applications for variation or termination of Child Protection orders before the Sheriff


Thursday, Aug 15, 2013

We have received a number of queries surrounding Section 48 applications for variation or termination of Child Protection orders before the Sheriff, which can take place at short notice and can sometimes take place out of hours. We have outlined the availability of the different types of children’s legal assistance to a child and relevant persons for these hearings.

If a child is old enough to directly instruct a solicitor and has a solicitor of choice, then that solicitor can provided ABWOR to the child for these proceedings with no means or merits test. A solicitor in such a circumstance would simply notify us of a grant of ABWOR to the child for this hearing, using Legal Aid Online. This solicitor can also submit an increase in authorised expenditure application for the conduct of this hearing if work is required that will exceed the £95 limit.

If the hearing is taking place out of hours and an increase is required for the conduct of such a hearing, then the solicitor can telephone our out of hours increase line on 07711 42 43 44. If the increase is granted then, to ensure payment, the solicitor must remember to submit the on-line increase application as soon as they are able to. Please note that we cannot grant an increase retrospectively so it is important that a solicitor has been granted this increase prior to the hearing taking place.

If a child is old enough to directly instruct a solicitor and does not have a solicitor of choice then they are entitled to the services of the duty solicitor who would then provide automatic legal aid to this child (again with no means or merits test). A solicitor in such circumstances would simply notify us of the grant of automatic legal aid to the child in these circumstances. If a solicitor is providing automatic legal aid then it is available for the duration of the hearing and there is no requirement to request an increase in authorised expenditure as there is when providing ABWOR.

ABWOR is also available to a relevant person and a deemed relevant person for such a hearing. However, there is a means and merits test to be applied by the solicitor. As these hearings take place at short notice the solicitor applies both these tests. If the tests are met the solicitor should then advise the Board via the advice and assistance on-line tab that they have granted ABWOR to their client in these circumstances. This solicitor can also submit an on-line increase in authorised expenditure application for the conduct of this hearing if work is required which would exceed the £95 limit.

If the hearing is taking place out of hours and an increase is required for the conduct of such a hearing then the solicitor can telephone our out of hours increase line on 07711 42 43 44. If the increase is granted then, to ensure payment, the solicitor must remember to submit the on-line increase application as soon as they are able to. Please note that we cannot grant an increase retrospectively so it is important that a solicitor has been granted this increase prior to the hearing taking place.

Children’s legal aid is also available to a relevant person and a deemed relevant person for such a hearing (but not for a child). It is up to the solicitor whether they wish to grant ABWOR to the relevant or deemed relevant person and apply for any increases (as above) or apply to the Board for sheriff court non automatic children’s legal aid. If a solicitor applies for children’s legal aid then the Board is required to apply the statutory tests of undue hardship and reasonableness to the application. If a solicitor is granted children’s legal aid then it is available for the duration of the hearing and there is no requirement to request an increase in authorised expenditure as there is when providing ABWOR. Special Urgency legal aid is also available to the relevant person and deemed relevant person for such a hearing where there is insufficient time to submit a full application.

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