The Children’s Legal Assistance (Scotland) Regulations 2013

Made: 18th June 2013

Coming into force: 24th June 2013

In accordance with section 37(2) of that Act, a draft of these Regulations has been laid before, and approved by resolution of, the Scottish Parliament.

PART 1 — GENERAL

Citation and Commencement

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These Regulations may be cited as the Children’s Legal Assistance (Scotland) Regulations 2013 and come into force on 24th June 2013.

Interpretation

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• (1) In these Regulations—

• “the Act” means the Legal Aid (Scotland) Act 1986;

• “the 1992 Act” means the Social Security Contributions and Benefits Act 1992[^f00002];

• “the 2011 Act” means the Children’s Hearings (Scotland) Act 2011;

• “the 2021 Act” means the Redress for Survivors (Historical Child Abuse in Care) (Scotland) Act 2021;

• “the 2022 Act” means the Social Security (Additional Payments) Act 2022;

• “the 2023 Act” means the Social Security (Additional Payments) Act 2023;

• “additional payment” means a payment within the meaning given in section 9(1) (interpretation) of the 2022 Act or that given in section 10(1) (interpretation) of the 2023 Act;

• “the 2019 Act” means the Age of Criminal Responsibility (Scotland) Act 2019,

• “assisted person” means a person who is or has been in receipt of children’s legal aid[^f00003] in the proceedings or hearings in question;

• “carer support payment” means carer’s assistance given in accordance with the Carer’s Assistance (Carer Support Payment) (Scotland) Regulations 2023,

• “child”—in relation to proceedings under the 2011 Act has the meaning given in section 199 of that Act,in relation to proceedings under the 2019 Act has the meaning given in section 80 of that Act,

• “children’s hearing” has the meaning given in section 5 of the 2011 Act;

• “Grenfell Tower payment” means any payment made to a person by way of compensation, damages or legal expenses in connection with the Grenfell Tower fire of 14 June 2017, including under any settlement arrived at to prevent or bring legal proceedings to an end,

• “human trafficking or exploitation victim payment” means any payment by way of support or assistance provided under section 9 of the Human Trafficking and Exploitation (Scotland) Act 2015 or under regulations made under section 10 of that Act, or any payment made by way of support provided under a Modern Slavery Victim Care Contract,

• “Infected Blood Compensation Scheme” means the scheme made by the Secretary of State or the Minister for the Cabinet Office in exercise of powers conferred by section 49 of the Victims and Prisoners Act 2024,

• “redress scheme” has the meaning given in section 2 of the 2021 Act;

• “relevant payment” means any payment described in section 42(2) (deduction of previous payment from redress payment) read with section 42(3) and (7) as adjusted in accordance with sections 42(5) and 43 of the 2021 Act;

• “interested person”, in relation to proceedings relating to an application for an order under section 34 (application for order authorising search in relation to child under 12), 42 (application for child interview order) or 61 (application for order authorising taking of prints and samples from child) of the 2019 Act means any other person the sheriff considers to have an interest in the application,

• “miscarriage of justice payment” means any payment made by the Secretary of State, the Scottish Ministers or the Department of Justice (Northern Ireland) for the purpose of compensating a person for a miscarriage of justice,

• “parent”, in respect of proceedings under Part 4 of the 2019 Act has the meaning given in section 76 of that Act,

• “relevant person” has the meaning given in section 200 of the 2011 Act, and includes a person deemed to be a relevant person by virtue of section 81(3), 160(4)(b) or 164(3)(a) of that Act; ...

• “safeguarder” means a safeguarder appointed to a child under section 30 or 31 of the 2011 Act;

• “Scottish child payment” means any payment under Part 3 of the Scottish Child Payment Regulations 2020;

• “Scottish Infected Blood Support Scheme” means the scheme of that name made by the Scottish Ministers in exercise of powers conferred by section 28 of the Smoking, Health and Social Care (Scotland) Act 2005;”,

• “social fund winter fuel payment” means the winter fuel payment paid by virtue of the Social Fund Winter Fuel Payment Regulations 2000;

• “Windrush Compensation Scheme” means the scheme of that name set out in the Windrush Compensation Scheme (Expenditure) Act 2020; and

• “Windrush connected payment” means a payment where—an individual has made a claim under the Windrush Compensation Scheme,a request included in that claim has been referred by the Home Office to another person, andthe payment is made to the individual by that other person as a result of that referral.

• (2) In these Regulations, any reference to the applicant or the assisted person includes, unless otherwise provided, the safeguarder or other representative (other than a solicitor) of the applicant or assisted person.

PART 2 — CHILDREN’S ASSISTANCE BY WAY OF REPRESENTATION

Amendment of the Advice and Assistance (Assistance By Way Of Representation) (Scotland) Regulations 2003

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• (1) The Advice and Assistance (Assistance By Way Of Representation) (Scotland) Regulations 2003[^f00004] are amended as follows.

• (2) In regulation 1(2) (citation, commencement and interpretation)—

• (a) after the definition of “the 1995 Act”, insert—

• “the 2011 Act” means the Children’s Hearings (Scotland) Act 2011;

• (b) after the definition of “the chairman of a tribunal”, insert—

• “child” has the meaning given in section 199 of the 2011 Act;
• “children’s hearing” has the meaning given in section 5 of the 2011 Act;
• “compulsory supervision order” has the meaning given in section 83 of the 2011 Act;

• (c) after the definition of “Parole Board case”, insert—

• “pre-hearing panel meeting” has the meaning given in section 79 of the 2011 Act;

; and

• (d) after the definition of “prisoner”, insert—

• “relevant person” has the meaning given in section 200 of the 2011 Act and includes a person deemed to be a relevant person by virtue of section 81(3), 160(4)(b) or 164(3)(a) of that Act;

• (3) After regulation 3, insert—

(3A) (1) Part II of the Act applies to assistance by way of representation in relation to— (a) a child in respect of— (i) the circumstances set out in section 28C(1) and (2) of the Act; (ii) a children’s hearing under the 2011 Act other than in the circumstances set out in section 28C(1) and (2) of that Act; (iii) a pre-hearing panel meeting at which a determination under section 81 of the 2011 Act is to be made as regards an individual to whom section 79(2)(a)(i) of the 2011 Act refers; (iv) an application to the sheriff as regards that child for a child assessment order under section 35 of the 2011 Act or a child protection order under section 38 of the 2011 Act; (b) a relevant person in respect of— (i) the circumstances set out in section 28C(1) and (2) of the Act; (ii) a children’s hearing under the Act other than in the circumstances set out in section 28C(1) and (2) of that Act; (iii) a pre-hearing panel meeting at which a determination under section 81 of the 2011 Act is to be made as regards an individual to whom section 79(2)(a)(i) of the 2011 Act refers; (iv) an application to the sheriff for a child assessment order under section 35 of the 2011 Act or a child protection order under section 38 of the 2011 Act; (c) an individual to whom section 126 of the 2011 Act refers, in respect of any hearing under that section which relates to that individual; (d) an individual to whom section 79(2)(a)(i) of the 2011 Act refers, in respect of a pre-hearing panel meeting or children’s hearing at which a determination under section 81 of the 2011 Act is to be made as regards that individual. (2) The assistance by way of representation described in paragraphs (1)(a)(i) and (iv) is available without reference to the financial limits under section 8 of the Act (availability of advice and assistance). (3) The assistance by way of representation described in paragraph (1)(b)(i) and (iv) is to be provided under Part II of the Act only if the solicitor to whom the application has been made is satisfied that legal representation is required to allow the relevant person to participate effectively.

• (4) In regulation 13 (assistance by way of representation requiring approval of the Board)—

• (a) in paragraph (1), after “(m)”, insert “, 3A(1)(a)(ii) and (iii), (b)(ii) and (iii), (c) and (d)”;

• (b) after paragraph (3), insert—

(3A) The Board must only approve the provision of assistance by way of representation in relation to the hearings described in regulation 3A(1)(a)(ii) and (iii), (b)(ii) and (iii), (c) and (d) where it is satisfied that the legal representation is required to allow the child, the relevant person or individual (as the case may be) to participate effectively.

• (5) After regulation 13, insert—

(14) When determining for the purposes of regulations 3A(3) or 13(3A) whether legal representation is required to allow a person to participate effectively, the solicitor or Board (as the case may be) must take into account the following matters— (a) the complexity of the case, including the existence and difficulty of any points of law in issue; (b) the nature of the legal issues involved; (c) the ability of the person to consider and challenge any document or information in the hearings or proceedings without the assistance of a solicitor; and (d) the ability of the person to present his or her views in an effective manner without the assistance of a solicitor.

Amendment of the Advice and Assistance (Scotland) Regulations 1996

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• (1) The Advice and Assistance (Scotland) Regulations 1996[^f00005] are amended as follows.

• (2) In regulation 2(1) (interpretation)—

• (a) after the definition of “the 1996 Act” insert—

• “the 2011 Act” means the Children’s Hearings (Scotland) Act 2011[^f00006];

• (b) for the definition of “child” substitute—

• “child” means a person under the age of 16 years, except in relation to any hearings or proceedings under the 2011 Act, where “child” has the meaning in section 199 of that Act;

• (c) after the definition of “legal representative” insert—

• “safeguarder” means a safeguarder appointed to a child under section 30 or 31 of the 2011 Act

• (3) In regulation 6(1) (applications on behalf of others)—

• (a) in sub-paragraph (b), after “representative” insert “or;”; and

• (b) after sub-paragraph (b) insert—

(c) where the client is a child in terms of the 2011 Act, and the application concerns hearings or proceedings under that Act, a safeguarder or other lay representative of the child.

• (4) In paragraph 4A of Schedule 2 (assessment of disposable capital and disposable income), after sub-paragraph (3) insert—

(4) This paragraph does not apply to assistance by way of representation in relation to hearings or proceedings under the 2011 Act.

PART 3 — CHILDREN’S LEGAL AID

Children’s legal aid: individual

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• (1) Children’s legal aid is available to—

• (a) an individual to whom section 126 of the 2011 Act refers in respect of any proceedings before a sheriff, sheriff principal or in the Sheriff Appeal Court or the Court of Session in connection with a hearing under that section, where the conditions in paragraph (2) are met,

• (b) an individual who is a parent or interested person in respect of proceedings under Part 4 of the 2019 Act, where the conditions in paragraph (2)(c) are met.

• (2) The conditions are that the Board is satisfied that—

• (a) for the purpose of enabling the individual to participate effectively in the proceedings, it is necessary that the individual be represented by a solicitor or counsel;

• (b) it is reasonable in the particular circumstances of the case that the individual should receive children’s legal aid; and

• (c) after consideration of the disposable income and disposable capital of the individual, in accordance with these Regulations, the expenses of the case cannot be met without undue hardship to the individual or the dependants of the individual.

• (3) When determining for the purposes of condition in paragraph (2)(a) whether the individual would be able to participate effectively in the proceedings, the Board must take into account the following matters—

• (a) the nature and complexity of the case (including any points of law);

• (b) the ability of the individual, with the assistance of any accompanying person, to consider and challenge any document or information before the proceedings; and

• (c) the ability of the individual, with the assistance of any accompanying person, to give his or her views in the proceedings in an effective manner.

Distinct proceedings

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• (1) In this regulation , except where otherwise specified, any reference to a numbered section is to a section bearing that number in the 2011 Act.

• (2) For the purposes of children’s legal aid the following are treated as distinct proceedings—

• (a) an application to the sheriff to vary or terminate a child protection order under section 48;

• (b) subject to paragraph (3), an application to the sheriff to extend or vary an interim compulsory supervision order under section 98;

• (c) subject to paragraph (3), an application to the sheriff to further extend or vary an interim compulsory supervision order under section 99;

• (d) an application to the sheriff to establish grounds under section 101;

• (e) an application to the sheriff for review of a grounds determination under section 110;

• (f) an appeal to the sheriff against a decision of the children’s hearing under section 154;

• (g) an appeal to the sheriff against a relevant person determination under section 160;

• (h) an appeal to the sheriff against a decision relating to a contact or permanence order under section 161;

• (i) an appeal to the sheriff against a decision to implement a secure accommodation authorisation under section 162;

• (j) an appeal to the Sheriff Appeal Court or the Court of Session against a determination or decision of a sheriff under section 163;

• (k) an appeal to the Sheriff Appeal Court or the Court of Session against a decision of a sheriff in an appeal against a relevant person determination under section 164;

• (l) an appeal to the Sheriff Appeal Court or the Court of Session against a decision of a sheriff in an appeal relating to a contact or permanence order under section 165;

• (m) an appeal to the Court of Session against a determination or decision of the Sheriff Appeal Court under section 163;

• (n) an appeal to the Court of Session against a decision of the Sheriff Appeal Court in an appeal against a relevant person determination under section 164;

• (o) an appeal to the Court of Session against a decision of the Sheriff Appeal Court in an appeal relating to a contact or permanence order under section 165;

• (p) an application to the sheriff for review of a decision or determination imposing a duty on a local authority under section 166; and

• (q) an appeal to the Sheriff Appeal Court against a determination of a review, or the making of an order, by a sheriff under section 167.

• (3) An application under paragraph (2)(b) or (c) is not to be treated as distinct proceedings where—

• (a) the application arises as part of other proceedings under the 2011 Act; and

• (b) the person, who would otherwise be required by virtue of paragraph (2) to apply for children’s legal aid, has already been granted children’s legal aid.

• (4) For the purposes of children’s legal aid each of the following (or one or more parts of them) is to be treated as a single set of proceedings—

• (a) proceedings relating to an application under section 34 of the 2019 Act for an order authorising a search in relation to a child under 12 years of age, an application to appeal to the Sheriff Appeal Court against a decision taken by a sheriff under section 36 of the 2019 Act in respect of that application, and where permission is given the proceedings relating to such an appeal,

• (b) proceedings relating to an application under section 42 of the 2019 Act for a child interview order, an application to appeal to the Sheriff Appeal Court against a decision taken by a sheriff under section 44 of the 2019 Act in respect of that application, and where permission is given the proceedings relating to such an appeal,

• (c) proceedings relating to an application under section 61 of the 2019 Act for an order authorising the taking of prints and samples from a child, an application to appeal to the Sheriff Appeal Court against a decision taken by a sheriff under section 63 of the 2019 Act in respect of that application, and where permission is given the proceedings relating to such an appeal.

Form of application

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• (1) Subject to regulations 8 (applications by or on behalf of children) and 18 (matters of special urgency), an application for children’s legal aid under Part 5A of the Act[^f00007] or under regulation 5 must be in such form as the Board may require, which may include an online form.

• (2) Where the applicant resides outside the United Kingdom and is not able to be present in the United Kingdom when the application is being considered, the application, which must be in English or in French, must, subject to paragraph (3), be sworn—