Children (Scotland) Act 2020 - registers of child welfare reporters, curators ad litem and solicitors: consultation

Part 4: Register of solicitors

Background

4.1. This section of the consultation focuses on the register of solicitors who can be appointed where an individual is prohibited from personally conducting the remainder of their case themselves under sections 4-5 of the 2020 Act.

4.2. This register will be separate to the registers for child welfare reporters and curators ad litem.

4.3. The fees and expenses for solicitors on this register would be paid by the Scottish Ministers.

4.4. Sections 11A, 11B and 22B of the Vulnerable Witnesses (Scotland) Act 2004 introduce a new special measure prohibiting a party from personally conducting the remainder of their case in certain circumstances. This special measure is available in proceedings where the court is considering making an order under section 11 of the 1995 Act and in Children's Hearings court proceedings.

4.5. In order to protect the right to a fair trial under article 6 of the European Convention on Human Rights legal representation must be available for an individual who has been prohibited from personally conducting the remainder of their case

4.6. In criminal proceedings where a party has been banned from cross examining another party or witness then where the court is not satisfied that the accused intends to engage a solicitor or, as the case may be, another solicitor for those purposes, it shall, at its own hand, appoint a solicitor for those purposes^[36]. The Scottish Government does not consider it appropriate to use solicitors appointed to this list in family court cases as they may not have experience of family law and also may not wish to represent individuals in these situations.

4.7. Section 7 of the 2020 Act places a duty on the Scottish Ministers to establish a register of solicitors from whom a lawyer is to be appointed if a party fails to appoint one themselves where the prohibition applies either in a case under section 11 of the 1995 Act or a Children's Hearing court proceeding. The Scottish Ministers must by regulations specify the requirements that a person must satisfy in order to be included and remain on the register and may also provide for the remuneration (the fee rate) payable to the solicitor. Provision may also be made about outlays such as fees to be paid to Counsel.

4.8. This section of the consultation provides information on:

• the fee rates and expenses to be paid
• the requirements that an individual must satisfy in order to be included on the register
• what ongoing training requirements there should be for the individuals
• how the court would appoint a solicitor from the register and
• the complaints process about individuals included on the register

Maintaining the register

4.9. Section 7 of the 2020 Act provides that Scottish Ministers must—

4.1. (a)establish, and

4.2. (b)(subject to provision made under subsection (2)(c)) maintain,

4.3. a register of solicitors who may be appointed by a court under section 22B(6) of the Vulnerable Witnesses (Scotland) Act 2004.

1.10. Therefore, the Scottish Ministers do have the power to confer the duty to maintain the register on another body. The Scottish Government's view is that this register should be managed and operated in the same way as the registers for child welfare reporters and for curators ad litem. Therefore, the Scottish Government proposes that the duty to maintain this register should remain with the Scottish Ministers but the day to day management and operation of the register would be contracted out.

Requirements for solicitors to be included on the register

4.11. The Scottish Government would expect that an individual would need to hold a practising certificate from the Law Society of Scotland. As is the case for child welfare reporters and curators ad litem, the Scottish Government considers that certain categories of people would not be eligible to be on this register of solicitors. This means that even if someone holds a practising certificate from the Law Society of Scotland they would not be eligible to be on this register of solicitors if they are:

• an individual directly involved in the establishment, maintenance operation or management of the register of curators ad litem
• an individual employed by the SCTS
• a member of the judiciary
• a member of the Scottish Government or a junior Scottish Minister.

4.12. In terms of any conflict of interest we would expect that an individual included on this register who subsequently accepts a post that would make them ineligible to be included on the register would need to resign as a curator ad litem.

4.13. The Scottish Government suggests that an individual on the register would also need to demonstrate relevant skills and experience in:

• family law
• domestic abuse, particularly the dynamic of coercive control
• family conflict and
• proofs.

4.14. A solicitor on the register could be subject to an annual appraisal in relation to any work they carry out as a result of being on the register.

Question 28): Do you agree/disagree with the proposed requirements that a person must satisfy in order to be included on the register of solicitors?

Agree

Disagree

Don't know

Why did you select your answer?

Question 29): Are there any other requirements that a person must satisfy in order to be included on the register of solicitors?

Yes

No

Don't know

Please give the additional requirements you feel are necessary and why you feel they are important.

Ongoing training requirements for solicitors on the register

4.15. The Scottish Government would expect anyone included on the register would undergo regular training to ensure that they are aware of the latest developments in family law. Solicitors do, of course, already undergo Continuing Professional Development (CPD). The Scottish Government considers it important that solicitors on this register are up to date in family law (rather than, for example, criminal law) and also domestic abuse, particularly the dynamic of coercive control.

4.16. The number of days training is envisaged to be less than the number of days that curators ad litem and child welfare reporters have to attend as these solicitors are unlikely to be appointed to represent a party as frequently as individuals are likely to be appointed as a child welfare reporter or curator ad litem. In addition, as they are not engaging with the child at the centre of the case a detailed knowledge of how to engage with children is not required. The Scottish Government would expect that training would be provided by experts in the relevant areas and that this training would be organised by the body responsible for the management and operation of the register.

4.17. If a solicitor does not attend the required number of training days without a reasonable excuse then they could be in breach of their terms and conditions and could be recommended for removal from the register.

Question 30) Do solicitors on this register require fewer days training each year than child welfare reporters and curators ad litem, on the basis that they are likely to receive fewer appointments?

Yes

No

Don't know

Why did you select your answer?

Question 31): Are there any other training requirements that you think should be included?

Yes

No

Please give the additional requirements you feel are necessary and why you feel they are important.

How a court would appoint a solicitor from the register

4.18. If the court considers an appointment is required, the court would make an order accordingly. It would then approach the body managing and operating the register.

4.19. The body would then consult the register and approach the next solicitor on the register who is willing to work in a specific geographic location. As the register is to be used infrequently it is envisaged that a number of solicitors may need to be approached in order to obtain one who would have availability to act for a party and does not have a conflict of interest.

4.20. Once a solicitor has been selected, the body would then advise the court accordingly. The court would give them sufficient time to engage with the party and to take instructions from them. The Scottish Government expects that court rules could lay down the minimum time required and, in line with usual practice, the Scottish Government would prepare a policy paper proposing rules to go to the Family Law Committee of the Scottish Civil Justice Council.

4.21. If a solicitor has a query that relates to for example expenses or payment then this would be dealt with by the body managing and operating the register. Any queries on the decision by the court to appoint a solicitor in a particular case would be for the court.

Question 32): Do you have any comments on the proposed process for the court appointing a solicitor from the register?

Yes

No

Why did you select your answer?

Appointment of Counsel

4.22. The majority of family court cases are heard in the sheriff court but a limited number are heard in the Court of Session. It is considered very unlikely a party would be unrepresented in the Court of Session. However, if this were the case then the solicitor acting for the party who has been prohibited from conducting their own case would need to employ counsel.

4.23. It would only be expected infrequently that counsel would be appointed in cases in the sheriff court. However, if the appointed solicitor considered it necessary then this would need to be authorised by the body appointed to undertake the operation and management of the register.

Fee rates

4.24. The Scottish Government expects that a per hour fee rate would be set. This would reflect that each case is different and representation in one case may require a significantly different amount to another case.

4.25. It would not be appropriate to set a per representation fee rate as each case would require a different degree of representation and also a different level of preparatory work. In addition, the duration of the appointments will vary.

4.26. We recognise that this may be a challenging role and we would propose to pitch the fee rate accordingly.

Expenses for solicitors

4.27. The Scottish Government expects that solicitors would only be able to claim expenses and allowances if the additional expense is actually incurred to carrying out official work whilst acting on the register. When this occurs all expenses and allowances including actual receipted costs and flat rate mileage payments are payable. Where there are items of expenses where it is not possible to obtain receipts (such as paying for parking by phone) then this should be claimed for with an explanation of why the receipt isn't available.

4.28. The Scottish Government would expect that solicitors seek value for money in terms of travel expenses. For example they would be expected to purchase standard class rail fares. It would be expected that the expenses that a solicitor can claim would be at the levels set by the Scottish Government for its own staff. These are set at Annex E to this consultation.

Question 33): Do you agree/disagree with the proposed procedure for expenses for individuals appointed to this register?

Agree

Disagree

Don't know

Why did you select your answer?

Complaints procedures

4.29. The Scottish Government considers that the complaints process in relation to solicitors on the register would be similar to what is outlined above for curators ad litem.

Not being on the register

4.30. An individual may wish to complain about being unsuccessful in their application to be on this register of solicitors or about being removed from the register. The Scottish Government envisages that any such complaint would initially be handled by the team responsible for appointments. If the individual remains dissatisfied then the complaint would be dealt with by another team which had no role in the original decision.

Grievances held by solicitors on the register

4.31. A person on the register may have a grievance about fees or expenses; or on the quality of the training provided and the subjects covered; or on other points about the way in which the register is run. Any such grievances would be handed by the body appointed to operate and manage the register.

Complaints about a solicitor on the register

4.32. Complaints could be about the service provided by the solicitor or about the conduct of the solicitor. A complaint about the service provided could be raised by the person being represented. A complaint about the conduct of the solicitor could be raised by the person being represented, by another party to the case or by the child.

4.33. On receiving a complaint the body appointed to operate and manage the register would decide whether it has any merit. If there is evidence of failings a decision would be taken on the outcome which could be – more training, a verbal or written warning or being suspended from or removed from the register. The body may approach the relevant sheriff who appointed a solicitor to represent a party.

4.34. Any decisions to remove an individual from the register would be made by the Scottish Ministers.

4.35. The Scottish Government would expect that parties and anyone else could raise a complaint about the conduct of the solicitor to the Scottish Legal Complaints Commission in the usual manner.

Question 34): Do you have any comments on the proposed procedure for complaints by or about solicitors on this register?

Yes

No

Please provide your comments.