(This note is not part of the Regulations)
These Regulations amend other regulations relating to legal assistance and legal aid to reflect the introduction of bespoke provisions about children’s legal aid in sections 28B to 28S of the Legal Aid (Scotland) Act 1986 as amended by the Children’s Hearings (Scotland) Act 2011 (“the 2011 Act”), and the coming into force of the 2011 Act itself.
Regulation 3 provides for the availability of assistance by way of representation (“ABWOR”) for children’s matters. Regulation 3 does so by amending the Advice and Assistance (Assistance By Way Of Representation) Regulations 2003. The amendments specify the person who may receive children’s ABWOR and the eligibility requirements which apply in each case.
Regulation 4 amends the Advice and Assistance (Scotland) Regulations 1996 (“the 1996 Regulations”) to ensure that advice and assistance continues to be available, with reference to the 2011 Act. Some minor amendments are required to ensure the 1996 Regulations apply appropriately to advice and assistance given in relation to matters arising under the 2011 Act.
Regulation 5 provides for children’s legal aid to be available to individuals to whom section 126 of the 2011 Act applies. The regulation also specifies the conditions which the Scottish Legal Aid Board must be satisfied are met before a grant of children’s legal aid in the circumstances can be made.
Regulations 6 to 34 and Schedules 1 and 2 apply to all applications for, and grants of, children’s legal aid. They provide for how children’s legal aid will be administered including: the form of application; how an applicant’s income and capital should be determined; how the resources of others should be accounted for; which proceedings under the 2011 Act constitute distinct proceedings (for which separate legal aid cover is required); procedures where a matter is of special urgency; when counsel or expert witnesses may be employed; the procedures for reporting a change in the circumstances of the assisted person or abuse of children’s legal aid; and when children’s legal aid may be suspended or terminated.
Regulation 35 relates to a children’s legal aid duty solicitor scheme. Under the regulation the Scottish Legal Aid Board is required to arrange for such a scheme and where a duty solicitor is available the provisions of the Legal Aid (Scotland) Act 1986 about selection of a solicitor will not apply.