Various questions regarding Section 25 of the Children (Scotland) Act 2020): FOI release

Information requested

1. Since July 2021, how many applications have the Scottish Ministers received to use their discretionary powers to direct payments be paid out of the Scottish Legal Aid Fund for legal assistance for Participation Individuals (siblings seeking to exercise their rights under section 25 of the Children (Scotland) Act 2020) in Children's Hearings
2. Since July 2021, how many discretionary payments under the Scottish Legal Aid Fund have the Scottish Ministers approved to provide legal representation for Participation Individuals (siblings seeking to exercise their rights under section 25 of the Children (Scotland) Act 2020) in Children's Hearings
3. Since July 2021, how many discretionary payments under the Scottish Legal Aid Fund have the Scottish Ministers refused to pay for legal representation for Participation Individuals (siblings seeking to exercise their rights under section 25 of the Children (Scotland) Act 2020) in Children's Hearings
4. Since July 2021 what Legal and policy advice has been provided to the Minister for Community Safety for making decisions and using these powers in the case of Participation Individuals (siblings seeking to exercise their rights under section 25 of the Children (Scotland) Act 2020)

Response

Your request refers to the Scottish Ministers’ “discretionary powers to direct payments be paid out of the Scottish Legal Aid Fund for legal assistance for Participation Individuals (siblings seeking to exercise their rights under section 25 of the Children (Scotland) Act 2020) [“the 2020 Act”]in Children's Hearings”. Neither the Legal Aid (Scotland) Act 1986 (“the 1986 Act”), the Children’s Hearings Scotland Act 2011 (“the 2011 Act”) nor the 2020 Act confer such specific powers on the Scottish Ministers in relation to participants in children’s hearings. It is therefore assumed that your request relates to the exercise of the power to cause payments to be made from the Scottish Legal Aid Fund (“the Fund”) under s.4(2)(c) of the 1986 Act – “There shall be paid out of the Fund… such other payments as the [Scottish Ministers] may determine.”

Persons who do not qualify for publicly funded legal assistance under the 1986 Act and the regulations made under that Act may apply directly to the Scottish Ministers requesting that they make such a
determination, and accordingly we understand that your request relates to such applications where these relate to the participation of siblings in children’s hearings proceedings under the 2011 Act, as amended by section 25 of the 2020 Act.

Question 1

Since July 2021 there have been sixteen applications received requesting that the Scottish Ministers determine that payment be made from the Fund for legal representation relating to the participation of siblings in children’s hearings proceedings under the 2011 Act.

Question 2

Since July 2021 the Scottish Ministers have determined that a payment from the Fund be made for legal representation relating to the participation of siblings in children’s hearings proceedings under the 2011 Act in respect of one application.

Question 3

Since July 2021 the Scottish Ministers have declined to make such a determination for payment from the Fund to be made for legal representation relating to the participation of siblings in children’s hearings proceedings under the 2011 Act in respect of nine applications. In respect of the other such applications that were received but in respect of which Ministers did not make a decision –

• in four applications there was insufficient time for consideration;
• in one application publicly funded legal assistance was available without the need for a determination;
• one application restated a previous application that been declined with no new information provided.

Question 4

When considering any request for a determination, a submission is provided to the Scottish Ministers, in which policy advice is interlinked with the legal advice and the personal characteristics of the applicant.

While our aim is to provide information whenever possible, in this instance, we are unable to provide all of the information you have requested because exemptions under sections 36 (confidentiality) and section 38(1)(b) (personal information) of FOISA apply to that information. The reasons why these exemptions apply are explained in the Annex to this letter.

While the legal and policy advice in respect of the particular applications received is subject to the above exemptions, we have provided draft Ministerial Submission templates. Further to this, the following general information that would inform a submission to the Scottish Ministers following a request for a determination being received may be of interest to you.

When asked to make a determination for payment under section 4(2)(c) of the 1986 Act for the purpose of funding legal assistance, the Scottish Ministers assess each case on its merits and consider whether it is reasonable in the particular circumstances. Ministers have discretion as to whether to make such payments, provided that discretion is used in a way that is consistent with the terms of the 1986 Act and in accordance with general principles of administrative law.

The Scottish Government previously set out a description of its approach to applications under section 4(2)(c) in a submission to the Public Petitions Committee of the Scottish Parliament; the submission is accessible at this link:

Scottish Government submission 261017(parliament.scot)

As the submission indicates, when assessing whether to exercise the discretion to make a payment under section 4(2)(c), Scottish Ministers will assess each case on its merits and take into account all relevant considerations including the need to ensure the protection of ECHR rights, any gaps in legislative provision, and also the need for procedural fairness overall, having regard to the whole circumstances of the application.

As noted, Ministers’ exercise of the power under section 4(2)(c) is to be exercised in a way consistent with the operation of the existing rules made by the 1986 Act and any regulations made under that Act. Accordingly, when an application for a determination is made for a type of legal assistance for which provision is made in regulations, but for which the particular applicant does not qualify, Ministers will consider carefully whether making such a payment would interfere with those regulations, and in that case whether doing so is appropriate.

With regard to requests concerning sibling participation at children’s hearings, applicants are asked to provide specific information to assist Ministers in assessing applications. The following extract from a recent email to an applicant sets out the additional information that Ministers take into account –

When asked to make a determination for payment under section 4(2)(c) of the Legal Aid Scotland Act 1986 (“the 1986 Act”) for the purpose of funding legal assistance, the Scottish Ministers assess each case on its merits and consider whether the requested payment should be made, taking into account the particular circumstances that the applicant has set out. In exercising their discretion to make payments from the Legal Aid Fund under this provision, Ministers have regard to the terms of the 1986 Act and regulations made under that Act, as well as to general principles of administrative law. In assessing applications Ministers give particular consideration to –

1. the applicants’ ECHR rights,
2. any gaps in legislative provision, and
3. the need for procedural fairness overall, taking into consideration the whole circumstances presented by the applicant.

As your request for payment from the Fund relates to your client’s attendance at a children’s hearing in respect of their sibling, further detail in relation to certain aspects of the application would be of particular assistance. The UK Supreme Court recently considered, in the cases of ABC and XY ([2020] UKSC 26), the rights under articles 6 and 8 of the ECHR of the siblings of children who are the subject of proceedings before a children’s hearing, and found that the existing legislative scheme under the Children's Hearings (Scotland) Act 2011 can be operated in accordance with those rights. The Court identified a range of existing measures within the system which can be used to ensure that the relevant public authorities comply with their duty to act compatibly with the rights of siblings and other family members, and indicated that those measures should be effective in ensuring respect for siblings’ rights if children’s hearings are conducted in a practical and sensible manner and in compliance with the guidance given by the Principal Reporter and Children’s Hearings Scotland.

The decision in ABC and XY preceded amendments which were recently made to the rules relating to the procedure in children’s hearings (the Children's Hearings (Scotland) Act 2011 (Rules of Procedure in Children's Hearings) Rules 2013 (“the 2013 Rules”)), which were intended to further ensure the involvement of the siblings of children in the children’s hearing process. These amendments provide that a qualifying individual who is the sibling (in terms of the criteria in rule 2A(3) of those rules) of a child that is the subject of proceedings has the rights mentioned in section 79(5ZA) of the 2011 Act, which include the right to provide a report to the hearing, authorisation to attend the hearing, and the right to be represented at the hearing. Section 79(5ZA) does not provide that the right to be represented is to be in the form of legal representation.

Having regard to the decision in ABC and XY and the recent amendments to the 2013 Rules then, it would be particularly helpful if as part of the further information requested above you could set out, so far as applicable –

4. any distinguishing circumstances in your client’s case which you consider Ministers should take into account in relation to ensuring compliance with the ECHR,
5. any procedural unfairness that you consider your client may be subject to were they not to be legally represented at the hearing,
6. whether the parents of the child are participating in the proceedings, whether they are represented and to what extent, if known, their views align with those of your client, and
7. whether your client has assistance from an independent advocacy service, or what steps have been taken to secure such assistance.

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FOI 202200276053 - Information released

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