Registration for children's legal assistance has now opened. All firms and solicitors wishing to carry out this work will need to register. This applies even if the individual or firm are already registered for the purposes of criminal legal assistance.
Registration forms, together with the code of practice and duty scheme eligibility criteria, are available on the SLAB website.
The Civil Legal Aid Team recommends that firms and solicitors considering registration do scrutinise the provisions of the code of practice, which includes a number of requirements that firms may find onerous. Previous comments from the team on the draft code can be found in our response and further comments.
In relation to the duty scheme for children's legal aid, the team has the following comments:
- There is no information as to how and by whom children are to be assessed as to their capacity to instruct a solicitor. Solicitors will be acting directly for the child, and so cannot act unless there is capacity to instruct. If the solicitor is required to travel to a hearing centre (perhaps some miles away) and then discovers that the child cannot instruct him/her, the time and journey will have been wasted at considerable expense to the solicitor, who will have been paid half the usual amount for the work done.
- Solicitors need to be aware that the restriction of fees for travel time and expenses will apply to the duty scheme, for instance, solicitors will be paid half fees for travel time and 25p per mile.
- It is understood that there are a relatively small number of cases which would qualify for the duty scheme in Scotland each year, and that many concern babies taken into care early in life. Clearly there is no role for a solicitor acting for the child in such cases (a safeguarder may be appointed to protect the interests of a very young child). For the payment offered, solicitors will need to consider whether it is worthwhile clearing their diaries for a week at a time for the cases which do require a solicitor. The team has not seen any detailed information about the number of cases in each area to allow solicitors and firms to make an informed decision about whether or not to register for the duty scheme.
- The duty scheme contains a requirement to give this work 'priority' - what that means is unclear - but a failure to comply with the terms of the duty scheme is stated to be a breach of obligations under the code of practice and that could have implications for the firm's overall registration for children's legal aid.
The view of the Civil Legal Aid Team at present is that firms registering for the duty scheme cannot be sure precisely what they are undertaking to do. The team will be engaging further with SLAB to obtain answers to these issues - and will have further discussions on the very poor remuneration which is to be paid for firms and solicitors agreeing to undertake this work.
The latest version of the Scottish Legal Assistance Handbook for children's hearings and associated court proceedings is available on the SLAB website and will contain guidance and information on the new children's legal assistance scheme following the implementation of the Children's Hearings (Scotland) Act 2011.