- Y Diweddaraf sydd Ar Gael (Diwygiedig)
- Pwynt Penodol mewn Amser (12/06/2013)
- Gwreiddiol (Fel y'i Deddfwyd)
Version Superseded: 24/06/2013
Point in time view as at 12/06/2013. This version of this provision has been superseded.
You are viewing this legislation item as it stood at a particular point in time. A later version of this or provision, including subsequent changes and effects, supersedes this version.
Note the term provision is used to describe a definable element in a piece of legislation that has legislative effect – such as a Part, Chapter or section.
Children's Hearings (Scotland) Act 2011, Section 191 is up to date with all changes known to be in force on or before 19 August 2024. There are changes that may be brought into force at a future date. Changes that have been made appear in the content and are referenced with annotations.
Changes and effects yet to be applied by the editorial team are only applicable when viewing the latest version or prospective version of legislation. They are therefore not accessible when viewing legislation as at a specific point in time. To view the ‘Changes to Legislation’ information for this provision return to the latest version view using the options provided in the ‘What Version’ box above.
After section 28A of the Legal Aid (Scotland) Act 1986 (c.47) insert—
(1)This Part applies to children's legal aid.
(2)In this Act, “children's legal aid” means representation by a solicitor and, where appropriate, by counsel in proceedings mentioned in subsection (3), on the terms provided for in this Act, and includes all such assistance as is usually given by a solicitor or counsel in the steps preliminary to or incidental to those proceedings.
(3)The proceedings are—
(a)proceedings before the sheriff in relation to an application under section 48 of the 2011 Act (application for variation or termination of child protection order),
(b)proceedings before a children's hearing arranged by virtue of section 45 or 46 of the 2011 Act (children's hearing following making of child protection order),
(c)proceedings before a children's hearing or a pre-hearing panel if the children's hearing or the panel considers that it might be necessary to make a compulsory supervision order including a secure accommodation authorisation in relation to the child to whom the proceedings relate,
(d)proceedings before a children's hearing to which section 69(3) of the 2011 Act applies (children's hearing following arrest of child and detention in place of safety),
(e)proceedings under Part 10 or 15 of the 2011 Act.
(4)In this Part—
“compulsory supervision order” has the meaning given by section 83 of that Act,
“pre-hearing panel” has the meaning given by section 79 of that Act,
“secure accommodation authorisation” has the meaning given by section 85 of that Act.
(1)Subsection (2) applies where—
(a)an application is made under section 48 of the 2011 Act for variation or termination of a child protection order,
(b)a children's hearing is arranged in relation to a child by virtue of section 45 or 46 of the 2011 Act,
(c)a children's hearing or a pre-hearing panel considers that it might be necessary to make a compulsory supervision order including a secure accommodation authorisation in relation to a child, or
(d)a children's hearing to which section 69(3) of the 2011 Act applies is arranged in relation to a child.
(2)If assistance by way of representation has not been made available to the child, children's legal aid is available to the child for the purposes of—
(a)proceedings before the sheriff in relation to the application mentioned in paragraph (a) of subsection (1),
(b)the children's hearing mentioned in paragraph (b) or, as the case may be, (c) or (d) of that subsection, and
(c)if that children's hearing is deferred, any subsequent children's hearing held under Part 11 of the 2011 Act.
(3)The Scottish Ministers may by regulations—
(a)modify subsection (1),
(b)modify subsection (2) and section 28B(3) and (4) in consequence of modifications made under paragraph (a).
(1)Subsection (2) applies in relation to proceedings under Part 10 or 15 of the 2011 Act (other than an appeal to the sheriff principal or the Court of Session).
(2)Children's legal aid is available to the child to whom the proceedings relate if, on an application made to the Board, the Board is satisfied that the conditions in subsection (3) are met.
(3)The conditions are—
(a)that it is in the best interests of the child that children's legal aid be made available,
(b)that it is reasonable in the particular circumstances of the case that the child should receive children's legal aid, and
(c)that, after consideration of the disposable income and disposable capital of the child, the expenses of the case cannot be met without undue hardship to the child.
(4)Subsection (5) applies in relation to an appeal to the sheriff principal or the Court of Session under Part 15 of the 2011 Act.
(5)Children's legal aid is available to the child to whom the proceedings relate if, on an application made to the Board, the Board is satisfied that—
(a)the conditions in subsection (3) are met, and
(b)the child has substantial grounds for making or responding to the appeal.
(1)Subsection (2) applies in relation to—
(a)proceedings before the sheriff in relation to an application under section 48 of the 2011 Act (application for variation or termination of child protection order), and
(b)proceedings under Part 10 or 15 of the 2011 Act (other than an appeal to the sheriff principal or the Court of Session).
(2)Children's legal aid is available to a relevant person in relation to the child to whom the proceedings relate if, on an application made to the Board, the Board is satisfied that the conditions in subsection (3) are met.
(3)The conditions are—
(a)that it is reasonable in the particular circumstances of the case that the relevant person should receive children's legal aid, and
(b)that, after consideration of the disposable income and disposable capital of the relevant person, the expenses of the case cannot be met without undue hardship to the relevant person.
(4)Subsection (5) applies in relation to an appeal to the sheriff principal or the Court of Session under Part 15 of the 2011 Act.
(5)Children's legal aid is available to a relevant person in relation to the child to whom the appeal relates if, on an application made to the Board, the Board is satisfied that—
(a)the conditions in subsection (3) are met, and
(b)the relevant person has substantial grounds for making or responding to the appeal.
(6)In this Part, “relevant person”—
(a)has the meaning given by section 200 of the 2011 Act, and
(b)includes a person deemed to be a relevant person by virtue of section 81(3), 160(4)(b) or 164(6) of that Act.
(1)Subsection (2) applies in relation to—
(a)an appeal under section 154 or 163(1)(a)(iii) or (2) of the 2011 Act arising from a determination of a children's hearing mentioned in section 142(1)(a) if by virtue of section 142(4)(b) an individual is no longer to be deemed to be a relevant person,
(b)an appeal to the sheriff under section 160(1)(a) of that Act against a determination of a pre-hearing panel or children's hearing that an individual is not to be deemed a relevant person in relation to a child,
(c)an appeal to the sheriff under section 160(1)(b) of that Act against a direction under section 142(4)(a) that an individual is no longer to be deemed a relevant person in relation to a child,
(d)an appeal to the sheriff principal or the Court of Session under section 164(1) of that Act against a decision of the sheriff in an appeal under section 160(1)—
(i)confirming a determination that an individual is not to be deemed a relevant person in relation to a child, or
(ii)quashing a determination that an individual is to be deemed a relevant person in relation to a child, and
(e)an appeal to the Court of Session under section 164(2) of that Act against a determination of the sheriff principal where the effect of the sheriff principal's determination is that an individual is not to be deemed a relevant person in relation to a child.
(2)Children's legal aid is available to the individual if, on an application made to the Board, the Board is satisfied—
(a)that it is reasonable in the particular circumstances of the case that the individual should receive children's legal aid,
(b)that, after consideration of the disposable income and disposable capital of the individual, the expenses of the case cannot be met without undue hardship to the individual, and
(c)that—
(i)in relation to an appeal mentioned in paragraph (a) of subsection (1), the individual has substantial grounds for making or, as the case may be, responding to the appeal,
(ii)in relation to an appeal mentioned in any other paragraph of that subsection, the individual has substantial grounds for making the appeal.
The Board may make the grant of children's legal aid subject to such conditions as the Board considers expedient; and such conditions may be imposed at any time.
(1)The Board must establish a procedure under which a person whose application for children's legal aid has been refused may apply to the Board for a review of the application.
(2)The Board must establish a procedure under which any person receiving children's legal aid which is subject to conditions by virtue of section 28G may apply to the Board for a review of any such condition.
The Board may require a person receiving children's legal aid to comply with such conditions as it considers expedient to enable it to satisfy itself from time to time that it is reasonable for the person to continue to receive children's legal aid.
(1)A person in receipt of children's legal aid (the “assisted person”) may be required by the Board to contribute to the Fund in respect of any proceedings in connection with which the assisted person is granted children's legal aid.
(2)A contribution under subsection (1) is to be determined by the Board and may include—
(a)if the assisted person's disposable income exceeds £3,355 a year, a contribution in respect of income which is not to be more than one-third of the excess (or such other proportion of the excess, or such amount, as may be prescribed by regulations made under this section), and
(b)if the assisted person's disposable capital exceeds £7,504, a contribution in respect of capital which is not to be more than the excess (or such proportion of the excess or such lesser amount as may be prescribed by regulations made under this section).
(3)Regulations under this section may prescribe different proportions or amounts for different amounts of disposable income and for different cases or classes of case.
(1)The Scottish Ministers may by regulations modify this Part so as to—
(a)extend or restrict the types of proceedings before a children's hearing in connection with which children's legal aid is to be available, and
(b)specify the persons to whom children's legal aid is to be available.
(2)If regulations are made making children's legal aid available to a child, the regulations must include provision—
(a)requiring the Board to be satisfied that—
(i)one of the conditions in subsection (3) is met, and
(ii)the conditions in section 28D(3) are met before children's legal aid is made available, and
(b)requiring the Board, in determining for the purposes of subsection (3)(b)(ii) whether the child would be able to participate effectively in the proceedings, to take into account in particular the matters mentioned in subsection (4).
(3)The conditions are—
(a)that it might be necessary for the children's hearing to decide whether a compulsory supervision order or, as the case may be, an interim compulsory supervision order should include or (where a compulsory supervision order is being reviewed) continue to include a secure accommodation authorisation, and
(b)that—
(i)the condition in paragraph (a) is not met, and
(ii)for the purpose of enabling the child to participate effectively in the proceedings before the children's hearing, it is necessary that the child be represented by a solicitor or counsel.
(4)The matters are—
(a)the nature and complexity of the case (including any points of law),
(b)the ability of the appropriate person, with the assistance of any accompanying person, to consider and challenge any document or information before the children's hearing,
(c)the ability of the appropriate person, with the assistance of any accompanying person, to give the appropriate person's views at the children's hearing in an effective manner.
(5)If regulations are made making children's legal aid available to a person other than the child to whom the proceedings relate, the regulations must include provision—
(a)requiring the Board to be satisfied that the conditions in subsection (6) are met before children's legal aid is made available, and
(b)requiring the Board, in determining for the purposes of the condition in subsection (6)(a) whether the person would be able to participate effectively in the proceedings, to take into account in particular the matters mentioned in subsection (4).
(6)The conditions are—
(a)that, for the purpose of enabling the person to participate effectively in the proceedings before the children's hearing, it is necessary that the person be represented by a solicitor or counsel,
(b)that it is reasonable in the particular circumstances of the case that the person should receive children's legal aid, and
(c)that, after consideration of the disposable income and disposable capital of the person, the expenses of the case cannot be met without undue hardship to the person or the dependants of the person.
(7)In subsection (4)—
“accompanying person” means a person entitled to accompany the child or other person to the children's hearing by virtue of rules under section 177 of the 2011 Act,
“appropriate person” means—
for the purposes of subsection (2)(b), the child,
for the purposes of subsection (5)(b), the other person.
(8)The Scottish Ministers may by regulations modify—
(a)the matters for the time being set out in subsection (4),
(b)the definition of “accompanying person” for the time being set out in subsection (7).
(1)The Board must establish and maintain a register of—
(a)solicitors who are eligible to provide children's legal assistance, and
(b)the firms with which such solicitors are connected.
(2)A sole solicitor who wishes to provide children's legal assistance must be included in the register maintained under this section both as a solicitor and as a firm.
(3)Only those solicitors who are included in the register maintained under this section may provide children's legal assistance.
(4)Subject to subsection (5), a solicitor may provide children's legal assistance only when working in the course of a connection with a firm included in the register maintained under this section.
(5)Where the Board employs a solicitor under sections 26 and 27 to provide children's legal assistance—
(a)the Board may only employ a solicitor who is included in the register maintained under this section,
(b)the entry in the register relating to the solicitor's name must include a note that the solicitor is so employed,
(c)the Board is not to be regarded as a firm for the purposes of this section and is not required to be included in the register.
(6)The Scottish Ministers may by regulations make provision about qualifications to be held by persons who may be included in the register maintained under this section.
(7)Subsections (5) to (15) of section 25A apply in relation to the register maintained under this section as they apply in relation to the Register subject to the modifications mentioned in subsection (8).
(8)Those modifications are—
(a)subsections (8) and (9) are to be read as if references to the code were references to the code of practice under section 28N for the time being in force, and
(b)subsection (9) is to be read as if the reference to criminal legal assistance were a reference to children's legal assistance.
(1)The Board must prepare a draft code of practice in relation to the carrying out by solicitors of their functions with regard to the provision of children's legal assistance.
(2)Different provision may be made for different cases or classes of case.
(3)Subsections (3) to (8) of section 25B apply in relation to a draft code prepared under subsection (1) above as they apply in relation to a draft code prepared under subsection (1) of that section.
(1)Solicitors and firms included in the register maintained under section 28M(1) must comply with the requirements of the code of practice under section 28N for the time being in force.
(2)The Board must monitor the carrying out by those solicitors and firms of their duty under subsection (1).
(3)For the purpose of carrying out its duty under subsection (2) the Board may use the powers conferred on it by sections 35A and 35B.
(1)Section 25D applies in relation to a solicitor or firm included in the register maintained under section 28M(1) and the code of practice under section 28N for the time being in force as it applies in relation to a registered solicitor or registered firm and the code subject to the modifications mentioned in subsection (2).
(2)Those modifications are—
(a)references to the Register are to be read as if they were references to the register maintained under section 28M(1),
(b)subsection (6) is to be read as if the references to criminal legal assistance were references to children's legal assistance.
(1)Subsection (2) applies where the Board is satisfied (whether on being informed by the solicitor concerned or otherwise) that a solicitor who is included in the register maintained under section 28M(1)—
(a)has become connected with a firm whose name is not included in that register, and
(b)is no longer connected with a firm whose name is included in that register.
(2)The Board must remove the solicitor's name from the register.
(3)Subsections (6) to (9) of section 25D (as applied by section 28Q) apply in relation to a solicitor whose name is removed from the register under subsection (2) above as they apply in relation to a solicitor whose name is removed from the register under subsection (4) of that section (as applied by section 28Q).
Section 25F applies in relation to the register maintained under section 28M(1) as it applies in relation to the Register.”.
Commencement Information
I1S. 191 in force at 31.1.2012 for specified purposes by S.S.I. 2012/1, art. 2(1), Sch.
I2S. 191 in force at 26.3.2012 for specified purposes by S.S.I. 2012/1, art. 2(1), Sch.
The Whole Act you have selected contains over 200 provisions and might take some time to download. You may also experience some issues with your browser, such as an alert box that a script is taking a long time to run.
Would you like to continue?
The Whole Act you have selected contains over 200 provisions and might take some time to download.
Would you like to continue?
The Whole Act without Schedules you have selected contains over 200 provisions and might take some time to download. You may also experience some issues with your browser, such as an alert box that a script is taking a long time to run.
Would you like to continue?
The Whole Act without Schedules you have selected contains over 200 provisions and might take some time to download.
Would you like to continue?
Y Ddeddf Gyfan you have selected contains over 200 provisions and might take some time to download. You may also experience some issues with your browser, such as an alert box that a script is taking a long time to run.
Would you like to continue?
Y Ddeddf Gyfan heb Atodlenni you have selected contains over 200 provisions and might take some time to download. You may also experience some issues with your browser, such as an alert box that a script is taking a long time to run.
Would you like to continue?
Y Diweddaraf sydd Ar Gael (diwygiedig):Y fersiwn ddiweddaraf sydd ar gael o’r ddeddfwriaeth yn cynnwys newidiadau a wnaed gan ddeddfwriaeth ddilynol ac wedi eu gweithredu gan ein tîm golygyddol. Gellir gweld y newidiadau nad ydym wedi eu gweithredu i’r testun eto yn yr ardal ‘Newidiadau i Ddeddfwriaeth’.
Gwreiddiol (Fel y’i Deddfwyd neu y’i Gwnaed): Mae'r wreiddiol fersiwn y ddeddfwriaeth fel ag yr oedd pan gafodd ei deddfu neu eu gwneud. Ni wnaed unrhyw newidiadau i’r testun.
Pwynt Penodol mewn Amser: This becomes available after navigating to view revised legislation as it stood at a certain point in time via Advanced Features > Show Timeline of Changes or via a point in time advanced search.
Rhychwant ddaearyddol: Indicates the geographical area that this provision applies to. For further information see ‘Frequently Asked Questions’.
Dangos Llinell Amser Newidiadau: See how this legislation has or could change over time. Turning this feature on will show extra navigation options to go to these specific points in time. Return to the latest available version by using the controls above in the What Version box.
Text created by the Scottish Government to explain what the Act sets out to achieve and to make the Act accessible to readers who are not legally qualified. Explanatory Notes were introduced in 1999 and accompany all Acts of the Scottish Parliament except those which result from Budget Bills.
Gallwch wneud defnydd o ddogfennau atodol hanfodol a gwybodaeth ar gyfer yr eitem ddeddfwriaeth o’r tab hwn. Yn ddibynnol ar yr eitem ddeddfwriaeth sydd i’w gweld, gallai hyn gynnwys:
This timeline shows the different points in time where a change occurred. The dates will coincide with the earliest date on which the change (e.g an insertion, a repeal or a substitution) that was applied came into force. The first date in the timeline will usually be the earliest date when the provision came into force. In some cases the first date is 01/02/1991 (or for Northern Ireland legislation 01/01/2006). This date is our basedate. No versions before this date are available. For further information see the Editorial Practice Guide and Glossary under Help.
Defnyddiwch y ddewislen hon i agor dogfennau hanfodol sy’n cyd-fynd â’r ddeddfwriaeth a gwybodaeth am yr eitem hon o ddeddfwriaeth. Gan ddibynnu ar yr eitem o ddeddfwriaeth sy’n cael ei gweld gall hyn gynnwys:
liciwch ‘Gweld Mwy’ neu ddewis ‘Rhagor o Adnoddau’ am wybodaeth ychwanegol gan gynnwys