Commentary on Sections Part 19 – Legal Aid and Advice Section 28L – Power of Scottish Ministers to modify circumstances in which children’s legal aid to be available
297.This section enables the Scottish Ministers, by regulations, to extend or restrict the proceedings before a Children’s Hearing in respect of which, and the persons to whom, children’s legal aid is available.
298.Subsections (2) and (3) set out the eligibility criteria which must be imposed by any regulations made under section 28L which make children’s legal aid available to the child concerned for proceedings before a Children’s Hearing. The conditions in subsection (3) are that representation may be made available to the child concerned in cases where either there is a possibility that the hearing might make a compulsory supervision order that contains a secure accommodation authorisation (or where such a compulsory supervision order is being reviewed) or where representation is considered necessary to ensure the child’s effective participation in the proceedings.
299.Subsection (5) prescribes the eligibility criteria which must be applied by regulations extending the availability of children’s legal aid to a person other than the child for proceedings before a Children’s Hearing. It requires that the conditions in subsection (6) are met. The conditions in subsection (6) are that SLAB must be satisfied that the person will only be able to effectively participate in the proceedings if he or she is legally represented. When making that determination SLAB must take into account the matters specified in subsection (4). Subsection (4) provides that when determining whether the child, or as the case may be the appropriate person, is able to participate effectively in the proceedings SLAB should take into account the assistance which may be afforded by an “accompanying person”. Subsection (7) defines “accompanying person” for those purposes by reference to rules made under section 177 of the Act. Subsection (8)(b) enables the Scottish Ministers, by regulations, to modify the definition of “accompanying person”.
300.In addition to enabling amendment of the definition of “accompanying person” in subsection (7), subsection (8) also enables the Scottish Ministers to amend, by regulations, the list of matters prescribed in subsection (4) which SLAB is obliged to take into account when determining whether the child, or as the case may be relevant person, will be able to effectively participate in the proceedings.