New Part 5a – Children’s Legal Aid
280.Part 5A makes provision for children’s legal aid. Legal aid in respect of court proceedings connected with Children’s Hearings was previously made available under section 29 of the 1986 Act. Part 5A replaces section 29. Schedule 6 of the Act provides for the consequent repeal of section 29.
Section 28B – Children’s legal aid
281.This section defines the scope of children’s legal aid. Subsection (2) defines it as representation (and such assistance as is usually incidental to representation) by a solicitor and, where appropriate, by counsel in respect of the proceedings specified in subsection (3). The proceedings specified in subsection (3) are:
proceedings before a sheriff for variation or termination of a child protection order;
proceedings before a Children’s Hearing or Pre-Hearing Panel—
following the making of a child protection order;
where the hearing or Pre-Hearing Panel considers it might be necessary to make a compulsory supervision order including a secure accommodation authorisation;
following the arrest of a child and his or her detention in a place of safety; and
proceedings before a sheriff, the sheriff principal or the Court of Session in connection with a Children’s Hearing.
282.Subsection (4) defines, by reference to this Act, the terms “compulsory supervision order”, “Pre-Hearing Panel” and “secure accommodation authorisation” for the purposes of the 1986 Act as amended.
Section 28C – Circumstances where children’s legal aid automatically available
283.This section provides for children’s legal aid to be made available to a child automatically, that is without application of the merits and means tests discussed in relation to section 28D, in limited circumstances. Those circumstances are where:
there are proceedings before a sheriff for variation or termination of a child protection order;
the hearing follows the making of a child protection order;
a hearing or Pre-Hearing Panel considers it may be necessary to authorise the placement of the child in secure accommodation; or
the hearing follows the child being apprehended by the police if it has been decided that criminal proceedings are not going to be pursued.
284.Subsection (3) confers power on the Scottish Ministers to extend or restrict, by regulations, the circumstances in respect of which children’s legal aid is automatically available.
Section 28D – Availability of children’s legal aid: child
285.This section deals with court proceedings under Parts 10 and 15 of the Act. Subsection (2) provides for children’s legal aid to be available to the child in respect of proceedings before a sheriff where the Scottish Legal Aid Board (“SLAB”) is satisfied that the conditions in subsection (3) are met. The conditions in subsection (3) take account of both the merits of the application and the applicant’s means. The conditions are that it is in the child’s best interests that children’s legal aid is made available and that it is reasonable in the circumstances of the case for the child to receive children’s legal aid. The means test requires SLAB to consider whether the expenses of the case can be met by the child, without causing undue hardship to the child. The Scottish Ministers may use their existing powers under section 42(2) of the 1986 Act in relation to civil legal aid and advice and assistance in all contexts to make detailed provision in regulations setting out what is and is not to be taken into account when assessing the means of a child or relevant person in connection with an application for children's legal aid.
286.Subsection (4) provides for children’s legal aid to be available to the child in respect of appeal proceedings before the sheriff principal or the Court of Session where the conditions in subsection (5) are met. The conditions are that SLAB is satisfied that the merits and means tests described in the preceding paragraph are met and, further, that the child has substantial grounds for making or responding to the appeal.
Section 28E – Availability of children’s legal aid: relevant person
287.This section mirrors section 28D, providing for children’s legal aid to be available to the relevant person (as opposed to the child) in respect of proceedings before a sheriff for variation or termination of a child protection order and court proceedings connected with a Children’s Hearing.
288.Subsection (2) provides for children’s legal aid to be available to the relevant person in respect of proceedings before a sheriff where SLAB is satisfied that the conditions in subsection (3) are met: that it is reasonable in the circumstances of the case for children’s legal aid to be made available to the relevant person; and that the expenses of the case cannot be met without causing undue hardship to the relevant person. These are similar to the merits and means tests set out in section 28D(3) for determining whether children’s legal aid should be made available to the child, save that section 28E does not require it to be in the best interests of the child that children’s legal aid be made available to the relevant person.
289.Subsection (4) provides for children’s legal aid to be available to the relevant person in respect of appeal proceedings before the sheriff principal or the Court of Session where the conditions in subsection (5) are met. The conditions are that SLAB is satisfied that the merits and means tests described in the preceding paragraph are met and, further, that the relevant person has substantial grounds for making or responding to the appeal. Subsection (6) defines “relevant person”, for the purposes of the relevant sections to be inserted into the 1986 Act, so that it has the same meaning which it is given in this Act.
Section 28F – Availability of children’s legal aid: appeals relating to deemed relevant person
290.This section provides for children’s legal aid to be available for court proceedings in which an individual is seeking deemed relevant person status. It also allows children’s legal aid to be made available to an individual who was, but has ceased to be, deemed to be a relevant person due to a decision of a hearing under section 142. By virtue of section 142(4)(b) the individual is to continue to be treated as a relevant person for the purpose of any appeal to the court against the hearing’s determination in respect of the compulsory supervision order. For the purpose of that appeal, this section allows children’s legal aid to be made available to the person whose deemed relevant person status has been removed. For these limited purposes, children’s legal aid will be made available to the individual concerned subject to the same eligibility criteria which are to apply in relation to relevant persons.
Section 28G – Conditions
291.This section allows SLAB to make a grant of children’s legal aid, under section 28D, 28E, 28F or any provision that may be made in regulations under section 28L of the 1986 Act, subject to such conditions as it considers expedient. It allows conditions to be imposed at any time, including at the time SLAB first makes legal aid available.
292.Section 28G replicates the effect of the provision which was to become section 29(5A) of the 1986 Act. Section 29(5A) was to be inserted into the 1986 Act by section 72 of the Legal Profession and Legal Aid (Scotland) Act 2007. However, section 29 of the 1986 Act (which is the provision under which legal aid was previously made available in relation to Children’s Hearings related court proceedings) is be replaced by sections 28D and 28F. Schedule 6 of the Act therefore provides for the repeal of section 29 of the 1986 Act and the uncommenced provisions of the Legal Profession and Legal Aid (Scotland) Act 2007 which would amend it.
Section 28H – Board to establish review procedures
293.Section 28H(1) places a duty on SLAB to establish a procedure for reviewing their refusal of an application for children’s legal aid. Subsection (2) obliges SLAB to establish a procedure for reviewing any conditions which it imposes in relation to a grant of children’s legal aid under section 28G. Like section 28G, section 28H replicates the effect of provisions which were to be inserted into section 29 of the 1986 Act by virtue of section 72 of the Legal Profession and Legal Aid (Scotland) Act 2007.
Section 28J – Board’s power to require compliance with conditions
294.This section enables SLAB to impose conditions on a person receiving children’s legal aid. The conditions imposed will be for the purpose of enabling SLAB to verify that the legal aid recipient continues to be entitled to receive it throughout the duration of the case.
Section 28K – Contributions to the Fund
295.This section enables SLAB to levy contributions towards the expenses of the case on those receiving children’s legal aid. Contributions received by SLAB will be paid into the Scottish Legal Aid Fund. Subsection (2) provides that it is for SLAB to determine the amount of any contribution payable.
296.Subsection (2)(a) provides that any contribution in respect of disposable income is to be levied on disposable income exceeding the prescribed statutory threshold (£3,355 per annum) and that the amount of that contribution is not to exceed one-third of the amount by which the person’s disposable income exceeds the prescribed threshold. It further provides, together with subsection (3), for the prescribed statutory threshold and the maximum contributable proportion (or amount) of disposable income to be varied by regulations. Subsection (2)(b) makes similar provision about the contribution which may be levied in respect of disposable capital. Specifically, it is only to be levied on disposable capital exceeding a prescribed statutory threshold (£7,504) and that the amount of the contribution is not to exceed the amount by which the person’s disposable capital exceeds the prescribed threshold. It further provides, together with subsection (3), for the prescribed statutory threshold and the maximum contributable proportion (or amount) of disposable capital to be varied by regulations.
Section 28L – Power of Scottish Ministers to modify circumstances in which children’s legal aid to be available
297.This section enables the Scottish Ministers, by regulations, to extend or restrict the proceedings before a Children’s Hearing in respect of which, and the persons to whom, children’s legal aid is available.
298.Subsections (2) and (3) set out the eligibility criteria which must be imposed by any regulations made under section 28L which make children’s legal aid available to the child concerned for proceedings before a Children’s Hearing. The conditions in subsection (3) are that representation may be made available to the child concerned in cases where either there is a possibility that the hearing might make a compulsory supervision order that contains a secure accommodation authorisation (or where such a compulsory supervision order is being reviewed) or where representation is considered necessary to ensure the child’s effective participation in the proceedings.
299.Subsection (5) prescribes the eligibility criteria which must be applied by regulations extending the availability of children’s legal aid to a person other than the child for proceedings before a Children’s Hearing. It requires that the conditions in subsection (6) are met. The conditions in subsection (6) are that SLAB must be satisfied that the person will only be able to effectively participate in the proceedings if he or she is legally represented. When making that determination SLAB must take into account the matters specified in subsection (4). Subsection (4) provides that when determining whether the child, or as the case may be the appropriate person, is able to participate effectively in the proceedings SLAB should take into account the assistance which may be afforded by an “accompanying person”. Subsection (7) defines “accompanying person” for those purposes by reference to rules made under section 177 of the Act. Subsection (8)(b) enables the Scottish Ministers, by regulations, to modify the definition of “accompanying person”.
300.In addition to enabling amendment of the definition of “accompanying person” in subsection (7), subsection (8) also enables the Scottish Ministers to amend, by regulations, the list of matters prescribed in subsection (4) which SLAB is obliged to take into account when determining whether the child, or as the case may be relevant person, will be able to effectively participate in the proceedings.