Applications by children for Civil Legal Assistance

Thursday, Aug 06, 2015

In 2011, the Scottish Parliament made changes to the Civil Legal Aid (Scotland) Regulations 2002 and the Advice and Assistance (Scotland) Regulations 1996 and introduced the requirement, in an application made by a child, for the resources of a person owing an obligation of aliment (POA) to a child to be treated as the child’s unless it was unjust and inequitable to do so.

We published guidance on how we would assess these applications and undertook to review our guidance. We have now completed the review with the benefit of input from a number of organisations who represent the interests of children.

We have produced extended guidance to cover a number of the situations we have encountered and to address the issues raised with us. We have included specific guidance about applications by looked after children and applications for a Guardianship order under the Adults with Incapacity (Scotland) Act, where the child is over the age of 16. We have also explained how those with caring responsibilities for children with disabilities can ensure those costs are taken into consideration in the application.

The main changes are:

  • If the applicant is or has been a looked after child and is living independently from the POAs (whether currently in a looked after setting or not) it is likely that it would be unjust and inequitable to take the POAs’ resources into account. You should tell us about the particular circumstances of the child so that we can consider these and decide whether it would be unjust and inequitable.
  • If the application is for the appointment of a Guardian under the Adults with Incapacity (Scotland) Act to a child over the age of 16, they are still treated as a child for the purposes of the legal aid regulations. However if the applicant is the POA for the child, aggregation of resources, will in most circumstances, be unjust and inequitable. You should provide sufficient information about the circumstance in the application to inform the exercise of the discretion in favour of the applicant. For example, you could provide us with information about expenditure the POA incurs in caring for the child which may not be covered by standard allowances for dependents, particularly when the child has special needs.
  • If there is a history or threat of domestic violence between the POA and the parent caring for the child, and the parent with care suspects that any approach for financial information in connection with the child’s application might give rise to new or further problems being experienced then this should be reported to us to allow us to assess how the financial assessment should be carried out.

The guidance is available in the Civil Legal Assistance Handbook in the chapters on Advice and Assistance (section 2.4) and Civil Legal Aid (section 2.16).

We hope you find this information beneficial however should you have any queries, please contact Joe Kelly, Head of Civil Legal Assistance -

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