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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. The Main Changes. New “children’s legal assistance” scheme for proceedings before children’s hearings and the court

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Legal Aid Provisions of the Children’s Hearings (Scotland) Act 2011

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  1. Legal Aid Provisions of the Children’s Hearings (Scotland) Act 2011 Part 19 Children's Legal Assistance (Scotland) Regulations 2013

  2. The 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

  3. Who gets what, when and where? • Advice and assistance • Automatic children’s legal aid • ABWOR • Children’s legal aid • Special urgency legal aid

  4. The Four Specified Hearings • CPO variation or termination • 2nd working day hearing • Secure accommodation placement • “Custody” hearing

  5. The 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 – • the complexity of the case, including the existence and difficulty of any points of law in issue; • the nature of the legal issues involved; • the ability of the person to consider and challenge any document or information in the hearings or proceedings without the assistance of a solicitor; • the ability of the person to present his or her views in an effective manner without the assistance of a solicitor.”

  6. Children’s Legal Aid • Available for sheriff court proceedings and appeals to Sheriff Principal and Court of Session • Applications to the Board! (not the sheriff)

  7. Children’s Hearing (Scotland) Act 2011 – New Overview Advice & Assistance

  8. Children’s Hearing (Scotland) Act 2011 – New Overview Automatic

  9. Children’s Hearing (Scotland) Act 2011 – New Overview ABWOR

  10. Children’s Hearing (Scotland) Act 2011 – New Overview ABWOR

  11. Children’s Hearing (Scotland) Act 2011 – New Overview Legal Aid

  12. 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.

  13. 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

  14. 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

  15. Financial Eligibility and Contributions Contributions Payable:

  16. Rule 61 • Recommendation from panel members • Reporter contacts Board • Board facilitates • Not part of Duty Scheme

  17. Code 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.

  18. Code of Practice • 5 Parts: Introduction. Conditions for Registration. Standards of Professional Conduct. Standards of Service. System of Management.

  19. Code of Practice Part 2 – Conditions for Registration

  20. Duty 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

  21. Duty 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.

  22. Registration • Both firm and solicitors have to register. • Forms available on website. • Assessment and review process. • Initial registration open until 17 May 2013.

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