Guidance on children’s legal assistance and information about the Code of Practice

Section 2M of the Legal Aid (Scotland) Act 1986 outlines the requirements for the registration of both individual solicitors and firms wishing to give children’s legal assistance.

You can only provide children’s legal assistance if you are registered. It is the responsibility of the firm's Compliance Partner to ensure that any instructed agent or solicitor is registered.

Only a registered children’s solicitor can be paid at qualified rates when carrying out any kind of children’s legal assistance work. This includes instructing counsel and advising the client during the court hearing or consultation. To avoid delays at the accounts stage please ensure that you always provide the name of the solicitor in attendance with counsel to allow us to verify that they are registered.

We cannot pay a solicitor who is not registered to carry out children’s legal assistance work to ‘sit in’ with counsel at qualified rates when sanction is granted. They can do so but will only be paid at unqualified rates just as if they were a first year trainee or paralegal etc.

To be registered you must get and keep a connection with a registered firm. If you are a sole practitioner, or you operate only in an agency capacity, you must also be registered as a firm. The term “firm” not only includes sole practitioners and agency solicitors but also the Civil Legal Assistance Office which is subject to the same level and method of monitoring as all other firms.

Both you and your firm have a duty to tell us of any changes to the information provided relevant to your registration. You should inform us of these changes within twenty working days or as soon as reasonably practicable after that.

Your Compliance Partner has to be a partner within the firm. However they do not have to have any practical knowledge of or involvement in children’s legal assistance or have to be registered in their own right. The duties of the Compliance Partner are:

• Making the application for the nominating firm to be registered and informing us of any changes.
• Certifying that the firm and its staff comply with the Code of Practice when the application is made.
• Producing a record of training attended by them (if appropriate) and any other individual solicitors of the firm applying for registration, or providing written confirmation that such courses will be attended within six months of registration.
• Ensuring that all the firm’s registered solicitors hold current valid practising certificates.
• Notifying us in advance or not later than twenty working days of changes within the firm relevant either to registration or compliance with this Code of Practice or longer if special reason for exceeding twenty working days can be shown. A special reason request for exceeding twenty working days can be shown. A special reason request must be made at the outset of the period.
• Liaising with us on any issue related to the Code of Practice.
• Receiving and handling enquiries from us about suspected non-compliance with the Code, whether on the part of the firm or any individual solicitor within it.
• Ensuring that necessary action is taken in the event of any non-compliance.

We have a statutory responsibility to monitor compliance with the Code of Practice. We will do this in various ways including quality assurance and peer review.

We can take a number of possible steps depending on the severity of a firm's non-compliance. In most situations, we will issue a warning letter and get an assurance from the Compliance Partner that remedial action has been or will be taken.

In other situations we may carry out a compliance audit to assess the scope of the problem. Only in the most extreme cases, or where non-compliance is deliberate and/or you or your firm does not appear to be inclined to remedy it, will we consider de-registration.

We also have the power to suspend a firm or solicitor from providing children’s legal assistance and/or withhold legal aid payments.

This section outlines accepted standards of conduct in relation to the provision of children’s legal assistance.  These closely echo and expand upon the Law Society of Scotland’s Code of Conduct. The subjects covered are:

• Policy for standards of professional conduct.
• Knowledge and experience.
• Resources
• Co-operation
• Consultation with adult clients.
• Consultation with child clients.
• Witnesses
• Witness expenses, professional and expert witness fees.
• Mandates

This section outlines what we expect as a standard of service to be provided by you and your firm. It also deals with the your relationship and communication with us and the validity of applications and accounts submitted. These latter sections are divided into factors such as accuracy, completeness, timeousness and relevance.

A firm shall establish a means of demonstrating that the requirements of this Code of Practice are consistently met by all legally qualified and non-legally qualified staff who are giving or assisting in giving children’s legal assistance. This includes anyone involved in the administration of or accounting for children’s legal assistance.

All solicitors registered for the Children’s Duty Scheme need to be PVG registered and have us as a registered body on their Disclosure Scotland record.

The Protection of Vulnerable Groups (Scotland) Act 2007 (PVG Act) created the legislative framework for a new vetting and barring scheme for those working with children and protected adults in Scotland. It operates concurrently with certain aspects of the previous disclosure system which remain in place, which are: Basic, Standard and Enhanced Disclosure.

Section 91 of the PVG (S) Act 2007 bars individuals from regulated work with children if the individual is listed in the children’s list maintained under the Act. The PVG scheme contains all conviction information, spent and unspent, and any other non-conviction information considered to be relevant by the police or other Government bodies. Unlike the Basic, Standard and Enhanced Disclosures, a PVG scheme record is updated and notified to all those with an interest in the event of any change affecting a person’s scheme record.

There are a number of elements to be taken into account in considering whether work is regulated. These include being in sole charge of children and/or having unsupervised contact with children under arrangements made by a responsible person.