The Children’s Legal Assistance (Miscellaneous Amendments and Consequential Provisions) (Scotland) Regulations 2021

EXPLANATORY NOTE

(This note is not part of the Regulations)

These Regulations amend the Legal Aid (Scotland) Act 1986 (“the 1986 Act”) and the following instruments made under that Act, in relation to proceedings under Part 4 of the Age of Criminal Responsibility (Scotland) Act 2019 (“the 2019 Act”):

• the Civil Legal Aid (Scotland) (Fees) Regulations 1989 (“the 1989 Regulations”),

• the Advice and Assistance (Financial Limit) (Scotland) Regulations 1993 (“the 1993 Regulations”),

• the Advice and Assistance (Scotland) Regulations 1996 (“the 1996 Regulations”),

• the Advice and Assistance (Assistance by Way of Representation) (Scotland) Regulations 2003 (“the 2003 Regulations”), and

• the Children’s Legal Assistance (Scotland) Regulations 2013 (“the 2013 Regulations”).

Regulation 2 amends section 28C of the 1986 Act to make children’s legal aid automatically available to a child in relation to whom an application is made for any of the orders under Part 4 of the 2019 Act. Legal aid is made available for representations by the child when a sheriff is considering an application for an order, as well as for applying for permission to appeal the subsequent decision and for any resultant appeal proceedings.

Regulation 2 also makes consequential amendments to section 41 of the 1986 Act (interpretation), adding a definition of the 2019 Act and amending the definition of children’s legal assistance to include proceedings under Part 4 of the 2019 Act.

Regulation 3 amends schedule 7 of the 1989 Regulations to provide that fees for proceedings under Part 4 of the 2019 Act, other than children’s legal aid provided automatically under section 28C of the Legal Aid (to which regulation 2 of these Regulations relates), are payable under schedule 5 of the 1989 Regulations.

Regulation 4 amends regulation 3 of the 1993 Regulations to provide that the financial limit applicable to advice by way of representation provided in relation to proceedings under Part 4 of the 2019 Act is £500.

Regulation 5 amends the definition of “child” in regulation 2 of the 1996 Regulations (interpretation) to include the different meaning that applies in proceedings under Chapter 3 of Part 4 of the 2019 Act. For the purposes of the other proceedings under the 2019 Act, the meaning of “child” is included in the current definition in regulation 2 of the 1996 Regulations.

Regulation 5 also amends part 1 of schedule 3 of the 1996 Regulations to provide that the fees allowable to solicitors for providing assistance by way of representation in relation to proceedings under Part 4 of the 2019 Act are those set out in the table of fees in that part.

Regulation 6 amends regulation 3A of the 2003 Regulations, which includes provision for assistance by way of representation in relation to section 28C of the 1986 Act. As a result of the amendments made by regulation 2 of these Regulations, regulation 3A applies to proceedings under Part 4 of the 2019 Act. Regulation 6 amends the heading of the regulation to include reference to the 2019 Act, and restricts the effect of the amendments made by regulation 2 to ensure that they apply only to the child in proceedings under Part 4 of the 2019 Act.

Regulation 7 makes several amendments to the 2013 Regulations—

• regulation 7(2) amends regulation 2 (interpretation) to add definitions of “child”, “interested person” and “parent” in respect of proceedings under part 4 of the 2019 Act,

• regulation 7(3) amends regulation 5 (children’s legal aid: individual) to provide for children’s legal aid for an individual who is a parent or interested person in respect of proceedings under Part 4 of the 2019 Act, subject to the means test in paragraph (2)(c) of that regulation,

• regulation 7(4) amends regulation 6 (distinct proceedings) to provide that proceedings relating to an application for any of the orders under Part 4 of the 2019 Act, permission to appeal a decision made in respect of such an application, and where permission is granted the appeal of that decision itself are to be treated as a single set of proceedings for the purposes of children’s legal aid,

• regulation 7(5) amends regulation 18 (matters of special urgency) to provide that, if it appears to the Scottish Legal Aid Board that it is reasonable in the particular circumstances of the case, it may make children’s legal aid available where an application is made by a parent or interested person in relation to proceedings under Part 4 of the 2019 Act and any of the steps specified has required to be taken as a matter of special urgency to protect the applicant’s position.

A Business and Regulatory Impact Assessment has been prepared for these Regulations and placed in the Scottish Parliament Information Centre. Copies can be obtained from the Scottish Government Justice Directorate, St Andrew’s House, Edinburgh EH1 3DG, and online at www.legislation.gov.uk.