SUBMISSION FROM THE SCOTTISH LEGAL AID BOARD (SLAB) Introduction 1. The Scottish Legal Aid Board ( the Board ) welcomes the opportunity to provide written evidence to the above Committee on the Children s Hearings (Scotland) Bill. The Board s comments are restricted to areas of the Bill concerning legal aid provision only with particular reference to Part 19 of the Bill which makes provision for the availability of children s legal aid, which is legal aid provided in connection with certain children s hearings and related court proceedings. 2. The Board provided written responses to the then Scottish Executive on the various consultation documents issued on this subject and has met with various Government departments on a number of occasions to assist in devising an appropriate scheme for funding legal representation in these proceedings. General Part 19 of the Bill 3. Section 178 of the Bill inserts new Sections 28B to 28K to the Legal Aid (Scotland) Act 1986 (the 1986 Act ) which establish a basis within the legal aid and assistance scheme for legal representation to be provided at children s hearings and associated court proceedings, under the label children s legal assistance ; transfer responsibility for assessing entitlement to children s legal aid in the sheriff court from sheriffs to the Board; establish a contributions regime for those who can afford to contribute to the costs of children s legal aid; and establish a scheme for the introduction of a code of practice and registration process for solicitors and firms who provide children s legal assistance. 4. The Board welcomes these proposals and agrees that the provisions of Part 19 achieve these aims. Transfer of Grant Powers from the Sheriff to the Board 5. The Board agrees that this will help ensure consistency of decision making throughout Scotland and that it is the appropriate body with the requisite experience and resources to carry out this task. 6. The Board notes however that the proposed tests for granting children s legal aid in these court proceedings contained in the Bill are markedly different to the current tests laid down in Section 29 of the 1986 Act. It will be unclear to those considering the Bill why these significant changes are being proposed since there is no explanation given for this in the associated Policy Memorandum. Clarity is needed here.
7. Children s legal aid has always been available to relevant persons in these court proceedings however the Bill removes the test that is currently applied by sheriffs namely is it in the interests of the child that legal aid be made available to the relevant person This appears to be moving away from the ethos of the children s hearing system to which the child is at the centre. A new test known as the reasonableness test has been substituted where it has to be shown that it is reasonable in the particular circumstances of the case that the relevant person should receive legal aid. The Board welcomes this reasonableness test but questions why the interests of the child test is not kept. Table showing the proposed changes to the current merits and means tests for granting children s legal aid CURRENT TESTS PROPOSED TESTS Sheriff Court Proceedings child Interests of the child Best interests of the child Reasonableness Undue Hardship* Undue Hardship Interests of the child Reasonableness Sheriff Court Proceedings relevant person Undue Hardship* Undue Hardship Appeals to Sheriff Substantial Grounds Substantial Grounds Principal and Court of Reasonableness Reasonableness Session child Best interests of the child Undue Hardship Undue Hardship Appeals to Sheriff Substantial Grounds Substantial Grounds Principal and Court of Reasonableness Reasonableness Session relevant Undue Hardship Undue Hardship person * With the exception of an appeal to the sheriff against a warrant issued by a children s hearing where there is currently no financial test applied this is not proposed in the Bill for appeals against warrants to secure attendance, interim compulsory supervision orders and medical examination orders. The Board suggests that there should continue to be no financial test and considers this omission may be due to simple oversight. Undue hardship test is only applied if the test has not already been applied and satisfied in earlier proceedings (S29(10) of the 1986 Act) this is not proposed in the Bill. Again, it is suggested that this arrangement should continue and this omission may be attributed to mere oversight. 2
Availability of Legal Aid 8. The definition of children s legal aid at the new S28 B (2) is not restricted to a child and relevant person and the new S28 K (1) (b) allows Ministers to make regulations specifying the persons to whom children s legal aid is to be made available. 9. There appears to be three further categories of persons in terms of the Bill to whom children s legal aid would be available; namely an individual appealing in terms of S155 against a panel s decision not to hold them as relevant. a person who is no longer a child making an application in terms of S114 for a review of a grounds determination. a person who is no longer a relevant person also making an application in terms of S114. 10. It is open to all of the above persons to make onward appeals to the Sheriff Principal and Court of Session (S158 (1) and S157 (1)(b) ) 11. However the new S28D and S28E only stipulate the legal aid tests to be applied to children and relevant persons. No tests are laid down for these additional individuals and this will clearly require to be addressed. Safeguarders 12. In addition to those persons described above it is also unclear as to whether or not the Safeguarder is entitled under the Bill to obtain legal aid in their own right. It is noted that a Safeguarder is given a specific right of appeal in S148 (2) (c) of the Bill. As the availability of children s legal aid is not restricted to a child and a relevant person (as it is currently in terms of S29(2) of the 1986 Act) again there appears to be nothing to prevent a Safeguarder instructing a solicitor to make an application on their own behalf or if they are a solicitor themselves applying for legal aid to represent themselves given these two separate capacities. Either way there is no actual legal aid test laid down in Part 19 for such persons. 13. To expand further, Safeguarders may or may not be practising solicitors. In terms of rule 3.9(2) of the Act of Sederunt (Child Care and Maintenance Rules) 1997, a solicitor appointed to act as a Safeguarder is explicitly prohibited from also acting as a solicitor for the child. Despite the terms of this court rule, some courts have been granting legal aid to a child where the nominated solicitor is also the named Safeguarder. 14. It is unclear if the intention is to introduce a similar rule prohibiting a person carrying out this dual function. Clarity is needed here. If such a rule is maintained by its insertion into secondary legislation then as the Board will now have responsibility for assessing legal aid applications (and not the sheriffs) then the Board will have the ability to refuse such 3
applications made by a single person acting as both a solicitor and a Safeguarder as this would be acting contrary to the court rule. 15. The Board notes in S30 of the Bill that the responsibility for establishing and administering a Panel of Safeguarders will remain with the Local Authority and that in terms of S30(2)(e) Scottish Ministers may by regulations make provision for the payment of their expenses and allowances which is indeed the current position. 16. A Safeguarder who so happens to be a solicitor can however, as indeed happens now, instruct another solicitor to make an application for legal aid on behalf of the child. This could then result in dual payment for any of the same work carried out the Safeguarder could seek expenses from the Local Authority and the Solicitor instructed by the Safeguarder to act for the child could obtain payment from the Fund. The Board suggests that this duplication should be prevented by regulations. 17. If it is indeed the intention for Safeguarders to be paid by Local Authorities and that such persons are not to be able to apply for and receive children legal aid in their own right then it is suggested that explicit statutory provision is required to ensure that Safeguarders acting at children s hearings and in related court proceedings who happen to be practising solicitors do not seek payment instead of or as well as from the Legal Aid Fund. Curators Ad Litem 18. In the first draft of the Bill that was published for consultation there was a specific provision prohibiting sheriffs from appointing curators ad litem in these court proceedings. The Board is unclear as to why this prohibition does not remain in the Bill. In the absence of such a prohibition the Board submits that the current payment difficulties and geographical inconsistencies regarding such offices will remain. 19. Without this specific statutory prohibition it will still be open to a sheriff under common law to appoint a curator ad litem to act for a child instead of or as well as a statutory Safeguarder.It is apparent that such appointments are at present frequently made by sheriffs in these proceedings especially in the West of Scotland 20. S41 of the 1995 Act specifically creates an office of Safeguarder to safeguard the interests of a child in these proceedings as indeed does S30 of the Bill. Rule 3.7 of the associated Child Care and Maintenance Rules 1997 oblige a sheriff to consider in every proceeding whether it is necessary to appoint a Safeguarder and that if a Safeguarder is deemed necessary the Safeguarder should, in the usual instance, be the same person appointed in any earlier proceeding including an earlier children s panel hearing. 4
21. Rule 3.8 then states that a Safeguarder appointed by a sheriff shall have all the powers and duties at common law of a curator ad litem. It is therefore unclear to the Board why some courts appear to appoint curators ad litem rather than Safeguarders despite the fact that they have identical powers and duties. 22. There is nothing in the Child Care and Maintenance Rules to prevent a curator ad litem acting as both the curator ad litem and solicitor to the child unlike the position for Safeguarders. This may be an explanation as to why some sheriffs appoint curators. Where this occurs, however, that one person can only be paid from the Fund for work amounting to legal representation and the provision of legal services to the child. 23. Where a curator instructs a separate solicitor to act for the child, this separate solicitor could apply for legal aid and be paid from the Fund for the legal representation and provision of legal services but the curator could not be paid from any source as at present. There is no statutory payment mechanism for curators ad litem in respect of curatorial work. We suggest that if it is intended to continue the use of curators ad litem in these court proceedings then a statutory payment scheme for such officers requires to be devised. 24. Without specific legislative provision preventing the appointment of a curator ad litem there is a real possibility that the number of appointments in these proceedings will increase and that Safeguarders appointments will be made less frequently. 25. It should further be noted that there can also be incapable relevant persons in these proceedings. At present, a curator ad litem would be appointed to them which carries with it the same associated payment problems as outlined above regarding children. 26. Consideration should be given to extending the appointment of Safeguarders to incapable adult relevant persons. Alternatively, a statutory payment scheme for curators ad litem requires to be introduced. Child Assessment Orders and Child Protection Orders 27. Provision is made for these in Section 33 and 35 of the Bill. The important issue to note here is that as Part 19 of the Bill is currently framed, no children s legal aid will be available in the sheriff court for these Orders unlike the current position where children s legal aid is available in proceedings before the Sheriff on an application for these Orders or for their variation or recall (Section 29(2) (a) 1986 Act).Children s legal aid should be available here. However as the Bill is currently drafted Children s legal aid is only available in terms of the new 28B(3)(a) for proceedings under Part 10 or 15 of the Bill. These Orders fall within Part 5 of the Bill. 5
28. Automatic children s legal aid is to be made available to a child attending a hearing arranged following the making of a Child Protection Order in terms the new S28B(3)(a). Therefore it seems illogical that children s legal aid is not available for the court related proceedings. Pre-hearings Determinations 29. Section 78(3) (c) of the Bill allows a pre-hearing panel to notify the Board that it is necessary for the child to be represented by a solicitor or counsel. Paragraph 458 of the Policy Memorandum, states that it is not considered appropriate for advocates to appear before children s hearings. The Policy Memorandum and the Bill therefore appear to contradict each other and clarification on this important issue is requested. The Board finds it difficult to envisage a situation where it would be deemed reasonable and necessary for counsel to represent a party in such a panel hearing. 30. Furthermore, the Board considers the wording of this particular section to be somewhat confusing. It appears to give the impression that a prehearing panel can make the actual decision regarding the need for legal representation of a child where their placement in secure accommodation is under consideration. Where such a placement is likely then in terms of the new S28B(3)(b) of the Bill the child will be entitled to automatic children s legal aid. It will therefore be available to the child without the need for a grant to be made by a panel or the Board. The pre-panel will be merely advising the Board that secure accommodation is in contemplation and will therefore provide the Board with early notification of this to enable the Board to appoint a solicitor for the child if the child does not already have one. It may be therefore that this section requires some re-wording to make the position clearer. Appeals to the Sheriff Principal and Court of Session 31. The Bill continues the somewhat odd arrangement whereby parties can chose to appeal a decision of the sheriff to either the Sheriff Principal or to the Court of Session. Having such a choice can prove costly and time consuming which cannot be in the child s best interests. In a recent case, one party appealed to the Court of Session whilst the other appealed to the Sheriff Principal. Thereafter, unnecessary time and expense was incurred to allow the appeals to be conjoined and heard within the same court forum. It would appear sensible to have one single appeal route only. Financial Memorandum ( at paragraphs 447 to 451) 32. The Board provided the Government with estimated costs per case for solicitors representing children and relevant persons at children s hearings under automatic legal aid and ABWOR and not the expected volumes. The Board considers we may be likely to see higher volumes of legal representative appointments than the figures contained within 6
the Financial Memorandum. This may result in the overall costs to the Fund being higher than that estimated. The Board would be happy to assist further in this respect. Conclusion 33. The Board would be happy to provide further evidence, written or oral, on these aspects of the Bill and associated Policy and Financial Memorandums. Elizabeth Cuschieri Solicitor 31 March 2010 7