It’s often hard to know for sure if a problem faced by a child or young person is one where the law can help, however knowing how and when to get legal help for a child or young person is essential knowledge for anyone who cares for or supports children and young people.

If you are unsure what the law says about a certain issue and you want to discuss a child’s options, either before or after you have discussions with someone on their behalf, then the Legal Support Service can give information about the law to help you support the child you’re working with. Generally speaking, if something has or is happening that you or the child feels is unfair, then there may be a solution in the law, and early advice is always better than getting in touch with a solicitor afterwards. The solicitors behind the Legal Support Service are always happy to have an informal chat about whatever issues the child or young person is experiencing. The solution may be to take the matter forward through advocacy with the information you need about the law to do that, or else suggest that the child or young person might want to speak to a solicitor for legal advice. 

Quick Links

Why do children need lawyers? 

What does a young person need to know about getting a lawyer? 

Capacity to instruct

Confidentiality

Legal aid

Choice of solicitor

Why do children need lawyers? 

If we think about the situations in which an adult would want access to legal advice or representation, such as where they stand to lose their job, their home, their family or even their freedom, children regularly face these situations too, but are often are facing them without the benefit of a lawyer to advise and represent them.

It is often said that children don’t need their own lawyers because they are supported to give their views through advocacy, family members or carers, or because the whole system is centred around the child, their views and their best interests. We know from our work that despite that and despite the efforts that are made by people in the care workforce to make sure children’s voices are heard, young people are experiencing something different.

Often it will take legal advice and representation to make sure that children’s rights are respected, and that they experience the legal systems they encounter as they are meant to, by being listened to and their rights upheld at all stages.

The Promise Scotland is responsible for driving the work of change demanded by the findings of the Independent Care Review. It works with all kinds of organisations to support shifts in policy, practice and culture so Scotland can #KeepThePromise it made to care experienced people - that every child grows up loved, safe and respected, able to realise their full potential.

The Promise says that “[children’s] rights must be upheld as a basic minimum standard for their care. The Plan requires that care experienced children and young people will be able to easily access child centred legal advice and representation. As advocacy workers supporting children and young people you play a vital role in enabling the children and young people you support to easily access child centred legal advice and representation.

This is what some of the children we have worked with told us about having a lawyer

[it] meant that I didn’t have to worry about being taken advantage of in court as my solicitor knew what should be happening. This lessened my anxiety levels.

Having a lawyer lowered a lot of the stress I endured. After the hearing was finished, my lawyer would summarise what had happened, check whether I was happy with what had happened and answered any questions I had.

I feel much less worried now that I have more insight in how my case is going to go. I finally have some breathing space to pursue other aspects of life.

There is now a chance that the court will listen to what I have to say. Without a lawyer, I worried that they would just think X was telling me what to say.

What Does a Young Person Need to Know About Getting a Lawyer? 

Getting a solicitor to take on your case is sometimes called “instructing a solicitor” or a solicitor “taking your instructions”. 

Capacity to Instruct

A child can usually have their own lawyer if they are 12 or over. These are not strict rules though, and sometimes children a little younger than 12 can have capacity to instruct a solicitor. A child has capacity if the solicitor thinks that they understand what a solicitor does and that they understand the problem they need help with. It will be up to the solicitor to decide whether or not a child has the capacity to instruct them.

A child will have to be able to give the solicitor details of what has been happening. The solicitor will give the child information and advice so that they can decide what they want the solicitor to do to solve the problem. The solicitor will not tell the child what to do or decide for them, but will give advice and guide them through any legal processes. It’s important that the child is able to stay in contact with their solicitor and keep them up to date with what is happening and what they are thinking.  

Confidentiality 

Any discussions between a child and their solicitor are confidential, which means that the solicitor will not contact anyone about what is discussed without the child’s knowledge and permission. This includes other people involved in child’s case such as social workers or family members. The exception to this is where a child or young person is in danger and in need of protection, in which case the solicitor will have to share that information with others to ensure that a child is kept safe. Solicitors working with children will have their own child protection procedures in place for this situation.

Legal Aid

Most solicitors who work with children and young people can apply on their behalf for financial assistance from the Scottish Legal Aid Board. This assistance, called “Legal Aid” or “Advice and Assistance” can pay for a solicitor to give advice or do work on behalf of a child. A child or young person might have to provide details and proof of what money they have to assess if they are eligible for financial assistance. Although financial assistance is available from the Scottish Legal Aid Board for the work solicitors do around Children’s Hearings, it is not guaranteed in every situation for every child.

Choice of Solicitor 

It is always the choice of the child or young person to instruct a solicitor. A solicitor can be appointed to a child through a duty scheme (for example, when a children’s hearing are likely to discuss if secure authorisation is necessary) however if the child wishes to choose their own solicitor and arranges for their own representation, there is no need for a duty solicitor to be appointed to them.

Many solicitors can help children and young people with their issue. The Scottish Legal Aid Board has a ‘Find a Solicitor’ function which can be found here. The Legal Support Service can also help you identify a number of solicitors firms who you or the young person could approach to represent them.

If you are using the Find a Solicitor pages on the Scottish Legal Aid Board’s website, be sure that you search for solicitors that provide Children’s legal assistance (see below), rather than Civil or Criminal. Children’s legal assistance covers any advice provided relating to Children’s Hearings whether that advice is provided to an adult or a child in the proceedings.

Information for children and young people on how to get a lawyer, including queries around capacity to instruct and confidentiality, can be found on our main website