Legal Aid Provisions of the Children’s Hearings (Scotland) Act 2011
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Transcript of Legal Aid Provisions of the Children’s Hearings (Scotland) Act 2011
![Page 1: Legal Aid Provisions of the Children’s Hearings (Scotland) Act 2011](https://reader035.fdocuments.net/reader035/viewer/2022062300/56812b97550346895d8fb802/html5/thumbnails/1.jpg)
Legal Aid Provisions of the Children’s Hearings
(Scotland) Act 2011
Legal Aid Provisions of the Children’s Hearings
(Scotland) Act 2011
• Part 19
• Children's Legal Assistance (Scotland) Regulations 2013
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The Main ChangesThe Main Changes
• New “children’s legal assistance” scheme for proceedings before children’s hearings and the court
• Transfer of responsibility for assessing legal aid applications from the Sheriff to the Board
• “Duty” scheme• Contributions regime• Children’s Code of Practice, registration and
quality assurance
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Who gets what, when and where?
Who gets what, when and where?
•Advice and assistance•Automatic children’s legal aid•ABWOR•Children’s legal aid•Special urgency legal aid
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The Four Specified Hearings
The Four Specified Hearings
•CPO variation or termination•2nd working day hearing•Secure accommodation
placement•“Custody” hearing
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The Effective Participation TestThe Effective Participation Test
Regulation 14 of the Advice & Assistance (ABWOR) (Scotland) Regulations 2003 as amended
“Effective participation under the Children’s Hearings (Scotland) Act 2011
14. When determining for the purposes of regulations 3A(3) or 13(3A) whether legal representation is required to allow a person to effectively participate, the solicitor or Board (as the case may be) must take into account the following matters –
a) the complexity of the case, including the existence and difficulty of any points of law in issue;
b) the nature of the legal issues involved;c) the ability of the person to consider and challenge any document
or information in the hearings or proceedings without the assistance of a solicitor;
d) the ability of the person to present his or her views in an effective manner without the assistance of a solicitor.”
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Children’s Legal AidChildren’s Legal Aid
•Available for sheriff court proceedings and appeals to Sheriff Principal and Court of Session
•Applications to the Board! (not the sheriff)
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Children’s Hearing (Scotland) Act 2011 – New Overview
Children’s Hearing (Scotland) Act 2011 – New Overview
Advice & Assistance
Available To: Proceedings Type: Solicitor Test:
Board Test:
ChildRelevant Person
Deemed Relevant Person
Non Deemed Relevant PersonS126 Individual
Other
Advice re a Children’s Hearing or an associated court proceeding
MeansMerits
Means verification
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Children’s Hearing (Scotland) Act 2011 – New Overview
Children’s Hearing (Scotland) Act 2011 – New Overview
Automatic
Available To:
Proceeding Type: Solicitor Test:
Board Test:
Child
Court Proceedings:1.Variation or termination of a CPO
Children’s Hearing:1.2nd working day hearing following CPO
2.Hearing to contemplate secure accommodation
3.Hearing following arrest/detention
None Notification only
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Children’s Hearing (Scotland) Act 2011 – New Overview
Children’s Hearing (Scotland) Act 2011 – New Overview
ABWORAvailable To: Proceedings Type: Solicitor
Test:Board Test:
Child Court Proceedings:1.S35 Application for CAO2.S38 Application for CPO
3.Variation of termination of CPO
Children’s Hearing:1.2nd working day hearing following CPO
2.Hearing to contemplate secure accommodation
3.Hearing following arrest/detention
None Notification only
Relevant Person
Deemed Relevant Person
Court Proceedings:1.S35 Application for CAO2.S38 Application for CPO
3.Variation of termination of CPO
Children’s Hearing:1.2nd working day hearing following CPO
2.Hearing to contemplate secure accommodation
3.Hearing following arrest/detention
MeansMerits
Means verification
“Back end” check of merits when account
received
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Children’s Hearing (Scotland) Act 2011 – New Overview
Children’s Hearing (Scotland) Act 2011 – New Overview
ABWORAvailable To: Proceedings Type: Solicitor
Test:Board Test:
ChildRelevant Person
Deemed Relevant Person
All other unspecified Children’s Hearings
S79 (2) Pre-Hearing Panel
Means Means verificationMerits
S126 Individual S126 Hearing only Means Means verificationMerits
Non Deemed Relevant Person
S79 (2) Pre-Hearing Panel
Children’s hearing where S81 determination to be made
Means Means verificationMerits
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Children’s Hearing (Scotland) Act 2011 – New Overview
Children’s Hearing (Scotland) Act 2011 – New Overview
Legal Aid
Available To: Proceedings Type: Solicitor Test: Board Test:
ChildRelevant Person
Deemed Relevant Person
Proceedings under Part 10 or 15 of the 2011 Act (court proceedings
arising from a pre-panel hearing or children’s hearing decision including
appeals to the Sheriff, Sheriff Principal and Court of Session)
None
NB: Submit legal aid application to
the Board
MeansMerits
Non Deemed Relevant Person
S160 appeal to the Sheriff and S164 to the Sheriff Principal and Court of
Session
None MeansMerits
S126 Individual S161 appeal to Sheriff and S165 appeal to the Sheriff Principal and
Court of Session
None MeansMerits
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Financial Eligibility and Contributions
Financial Eligibility and Contributions
A&A/ABWOR
•Standard eligibility tests applied by solicitor.•Disposable income and disposable capital to be assessed.•Usual verification criteria apply. •Contributions collected by solicitors.
Exception
•ABWOR for child for specified hearings – no financial test and no contributions.
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Financial Eligibility and Contributions
Financial Eligibility and Contributions
Children’s legal aid –
• Automatic - no financial test- no contribution
•All others - means test - applied by SLAB- undue hardship test- contributions collected by SLAB
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Financial Eligibility and Contributions
Financial Eligibility and Contributions
Undue Hardship Test
•Allows SLAB to apply discretion.•Can only be applied where full details supplied.•Standard assessment calculates disposable income and contribution payable.•Undue hardship test allows us to consider granting children’s legal aid even when applicant over financial limits – e.g. very high cost cases
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Financial Eligibility and Contributions
Financial Eligibility and Contributions
Contributions Payable:
Case typeS98, S99, S160
S101, S110,
S154,S161, S162, S166, S48
S163, S164, S165, S167
Ave weeks 4 12 24
Actual Weekly Disposable
Income
£100£25.60
(20% of £32 (100-68) x 4 weeks)
£57.60
15% of £32 x 12 weeks
£76.8010% of £32 x
24weeks
£130£73.60
(£25.60 + 40% of £30 (130-100) x 4 weeks
£147.60
£57.60 + 25% of £30 x 12 weeks
£220.80£76.80 +
20% of £30 x 24 weeks
£160£139.60
(£73.60 + 55% of £30 (160-130) x 4 weeks
£309.60
£147.60 + 45% of £30 x 12 weeks
£436.80£220.80 +
30% of £30 x 24 weeks
£222
£313.20
(£139.60 + 70% of £62 (222-160) x 4 weeks
£808
£309.60 + 67% of £62 x 12 weeks
£1032
£436.80 + 40%of £62
x 24 weeks
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Rule 61Rule 61• Recommendation from panel
members• Reporter contacts Board• Board facilitates• Not part of Duty Scheme
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Code of PracticeCode of Practice
• Register of solicitors and firms.• Board to prepare draft Code of Practice.• Consultation.• Submit draft Code to Ministers.• Minister specifies date to come into effect and how
to publish.• Only solicitors included in the register to provide
CLA.• Solicitors and firms included in register must
comply with requirements of Code.• Board must monitor compliance.• Board can remove solicitors and firms for non-
compliance.
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Code of PracticeCode of Practice
•5 Parts: Introduction.Conditions for Registration.Standards of Professional
Conduct.Standards of Service.System of Management.
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Code of PracticeCode of Practice
Part 2 – Conditions for Registration
Competence 1 -
Understanding and detailed knowledge of provisions of 2011 Act and associated Rules and Regulations.
Competence 2 -
An understanding and detailed knowledge of the children’s legal assistance scheme.
Competence 3 -
An understanding of the ethos of the children’s hearing system.
Competence 4 -
Detailed knowledge or experience of representing clients at children’s hearings and related court proceedings.
Competence 5 -
If representing child clients a general understanding of child development and the principles of communicating with children.
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Duty SchemeDuty Scheme
Operation of Scheme
•Initial plan for 1 month-thereafter 12 months.•Allocations dependent on numbers.•Plans run from Monday to Sunday.•Allocated in blocks of one week (usually).•Most work office hours
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Duty SchemeDuty Scheme
•Applications from firms and sole practitioners.•Specify by name the solicitor(s).•Unrestricted practising certificate in respect of legal aid and registered on children’s legal assistance register.•Give priority to duty scheme.•Notify Board if unable to fulfil.•One month’s notice to withdraw.
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RegistrationRegistration
• Both firm and solicitors have to register.
• Forms available on website.• Assessment and review process.• Initial registration open until 17
May 2013.