Section 12 Legal Assistance (s 191)
The provision of Legal Aid for children and relevant persons is introduced by the Children's Hearings (Scotland) Act 2011. When Legal Aid is granted, legal assistance at the hearing will be provided for the child or relevant person. Legal Aid is an automatic right for a child at certain types of hearings. This is necessary to protect their rights and interests. There is no provision of automatic Legal Aid for relevant persons.
It is important to remember that neither a pre-hearing panel nor a children's hearing makes the decision about the provision of legal assistance for either a child or a relevant person. The pre-hearing panel or children's hearing may make certain recommendations which result in the reporter having to convey that information to the Scottish Legal Aid Board ( SLAB). When Legal Aid is not automatically made available, all decisions made in relation to granting or refusing Legal Aid will be made by the Scottish Legal Aid Board.
AUTOMATIC LEGAL AID FOR CHILDREN
Legal Aid for ensuring legal assistance for the child is automatically available in the following circumstances:
- where an application is made to vary or terminate a child protection order (s 48)
- where a second working day hearing is to take place (s 45-6)
- custody hearings where a child has been detained by police
- any hearing considering secure accommodation authorisation.
The child has to have the capacity to instruct a solicitor. A child of the age of 12 is deemed to have capacity to instruct but this does not mean that children below that age cannot have capacity. If the child is present at any of the hearing types mentioned above, has the capacity to instruct a solicitor but there is no legal assistance, the children's hearing should check that the child has been offered the opportunity to have a solicitor.
PROCEDURE AT PRE-HEARING PANELS
A children's hearing is likely to make a decision including a secure authorisation in relation to a child
Where a pre-hearing panel has decided that it is likely a children's hearing will consider making a compulsory supervision order or an interim compulsory supervision order including secure authorisation in relation to a child, the reporter must, as soon as it is possible, notify the Scottish Legal Aid Board and give them the name and address of the child so that arrangements can be made to provide the child with legal assistance at the forthcoming hearing in the event that the child does not have their own solicitor.
Non automatic legal assistance for child or relevant persons
Additionally, where a pre-hearing panel recommends that:
- In order for the child or any relevant person to participate effectively in the children's hearing, it is necessary that the child or relevant person be represented by a solicitor. and
- It is unlikely that the child or relevant person will arrange to be represented by a solicitor or counsel.
they should require the reporter to notify the Scottish Legal Aid Board as soon as possible and give them the name and the address of the child or relevant person/s. It is important to remember that the pre-hearing panel does not make the appointment; this matter will be considered by the Scottish Legal Aid Board ( SLAB) who will consider whether their criteria are met. (Rule 50)
PROCEDURE AT CHILDREN'S HEARINGS
A children's hearing is likely to come across situations where a child has automatically been granted Legal Aid and is present at a hearing with a solicitor who
is there to give legal assistance to the child. In addition to this form of legal assistance, there may be circumstances which the panel consider that legal assistance is required either for the child or the relevant person.
If during the course of a hearing, the children's hearing considers that:
- To allow the child or relevant person to participate effectively in the hearing it is necessary that the child or relevant person be represented by a solicitor or counsel. and
- It is unlikely the child or relevant person will arrange to be represented by a solicitor or counsel.
Legal assistance may be needed for the following reasons. e.g.
- The case contains complex legal issues.
- The person may not be able to participate effectively without the assistance of a solicitor.
The children's hearing should defer making a decision and require the reporter, as soon as possible, to notify the Scottish Legal Aid Board of the decision, the reasons for the decision and the name and address of the child and /or relevant person/s.
The Legal Aid Board
The Legal Aid Board has the duty to establish and maintain a register of solicitors (and also the firms to which they are connected) who will be eligible to provide assistance to children in certain circumstances.
The Board is under an obligation to draft a code of practice in relation to the functions of solicitors carrying out children's legal assistance and solicitors and firms must comply with the code of practice. Both solicitors and firms will be monitored by the Board in terms of their compliance with the code of practice.
It is likely that most firms who register will have one or more solicitors whose names are on the register. However, a solicitor who is acting on his own will be under an obligation to register as both a solicitor and a firm. Only solicitors whose names are included in this register are able to provide a service of children's legal assistance.
The Act allows for regulations to be made in the future which may be prescriptive about the qualifications held by those on the register.
Removal from the Register
The Board must remove the name of a solicitor from the register if the Board is satisfied that
- The solicitor has become connected with a firm whose name is not on the register.
- The solicitor is no longer connected with a firm whose name is on the register.