Northern Ireland Guardian Ad Litem Agency

Revised September 2013

NORTHERN IRELAND GUARDIAN AD LITEM AGENCY

POLICY ON SEPARATE LEGAL REPRESENTATION (SLR)

OF GUARDIANS AD LITEM

Introduction

This policy has been updated in line with the DHSSPS Circular HSS (F) 67/2006 Payments in respect of Litigation and Legal Services in the HPSS: Implementation of Controls

Separate legal representation for the guardian ad litem may be sought in exceptional cases in the Family Proceedings Courts: it is more likely to be made available in the Family Care Centres and the High Court because of the increased likelihood of complexity and the increased necessity for an advocate. However, as there is a limited Agency budget available for separate legal representation, it is important that all applications to the Agency are carefully assessed in order to ensure that (a) Confirmation that the solicitor cannot continue to act for the guardian ad litem while taking instruction from the competent young person and, (b) there are sufficient funds available.

Factors which will be taken into account are:-

(i)complexity

(ii)issues which require advocacy skills

(iii)ability of the guardian ad litem (gal) to place the issues before the court

(iv)duration of representation

Procedure to be followed:

(i)Young person must be deemed competent to give separate instructions and his/her views run contrary to the views of the gal.

(ii)The gal must complete a legal representation application form (See Appendix I) and bring this completed form to a meeting with their Line Manager/Case Co-ordinator/case co-ordinator. The guardian should not enter into negotiations with a solicitor prior to legal representation approval by the manager.

(iii)During discussions about the case the gal and Line Manager/Case Co-ordinator/case co-ordinatorshould ensure that the rationale for engagement of solicitor and counsel (if necessary) is assessed. The Line Manager/Case Co-ordinator/case co-ordinator may refuse the application at this stage.

(iv)In order to approve funding the Line Manager/Case Co-ordinator/case co-ordinator must be persuaded that separate legal representation is necessary to protect the best interests of the child and that funding is available within the allocated budget to meet projected costs. Final approval will be made by the management team.

(v)The Line Manager/Case Co-ordinator/case co-ordinator will record his/her decision on the legal representation application form, notify the gal and pass the completed form to the Corporate Services Manager who will record the Legal Representation Case (LRC) on the legal representation database.

(vi)If separate legal representation is agreed, the Corporate Services Manager prepares a Form of Undertaking(See Appendix II) which states that the appointed solicitor must forward fees for their work in line with Legal Service Commission rates. Two copies of this form are passed to the gal forhis/her signature and the solicitor’s signature. A copy of the completed form is returned to the Corporate Services Manager by the gal.

(vii)The solicitor should be selected from the NIGALA Children’s Solicitor Panel.

(viii)The gal should advise the court that he/she will be separately represented having received prior approval by the Agency.

(ix)The solicitor should be advised by the gal that personal representation by them is the requirement and delegation to a colleague is the exception.

(x)The manager should, in each case, review with the gal the necessity for continued separate legal representation, at least on a monthly basis. Solicitor reports and costs to be forwarded to gal/manager on at least a monthly basis.

(xi)Written approval from the gal’s Line Manager/Case Co-ordinator should be obtained prior to solicitors engaging counsel/other experts

(xii)Guardians should have read and understood the scale of legal commission fees and associated case activity costs. Guardians should therefore be aware of case tasks which they assign to a solicitor and the associated costs.

Financial Controls

1. All invoices received with a greater value than £1500 will be forwarded to the Agency’s approved cost drawer for assessment, renegotiation (if appropriate) and recommendation regarding payment.

1. All LRC invoices will be authorised by the Chief Executiveand forwarded to the Central Services Agency for payment. A copy of the authorised invoice will be kept on file and reconciled at the end of the month during the normal monthly reconciliation process.

1. Invoices in respect of all LRCs should quote the Agency reference number as identified in the form of undertaking.

1. All payments made by case will be maintained in the legal representation database and categorised according to:-

1. Solicitor costs
2. Barrister costs
3. Other Costs

1. The Corporate Services Manager will regularly (at least monthly) monitor the costs of all cases within the Agency for which separate legal representation was authorised and ensure the expenditure is a part of the monthly financial report.

1. If the limit of the budget for separate legal representation is reached during the course of a financial year, the Corporate Services Manager will advise the Chief Executive who will, in turn, ensure that the NIGALA Board and the DHSSPS are informed.

1. If the limit of the budget for separate legal representation is reached during a financial year there can be no further approvals given for SLA at any level of court without the express permission of theChief Executive.

EQUALITY SECTION 75 – SCREENING OF POLICIES

This policy has been screened for Equality implications as required by Section 75 and Schedule 9 of the Northern Ireland Act 1990. Equality Commission Guidance states that the purpose of screening is to identify those policies, which are likely to have a significant impact on equality of opportunity so that the greatest resources can be devoted to these. Using the Equality Commission’s screening criteria no significant equality implications have been identified.

HUMAN RIGHTS

This policy has been reviewed under the terms of the Human Rights Act. The Act makes it unlawful for public authorities to act in a way that is incompatible with a right contained in the European Convention on Human Rights. The outcome of the review is that the proposed policy does not identify any incompatibility in relation to the Convention Rights contained in the Act.

Appendix I

NORTHERN IRELAND GUARDIAN AD LITEM AGENCY

SEPARATE LEGAL REPRESENTATION FORM

Gal Reasons for Legal Representation Support

1. What are the factors that have determined the young person’s legal competence?

2. Is this a contested case? Yes (check box)

3. What are the complex issues requiring legal advice/representation?

Court Information

A new form must be completed and signed by your manager when a case is transferred to a higher court during separate legal representation for the gal.

Duration

Please print and pass this form and the following page to your Line Manager/Case Co-ordinator.

FOR Line Manager/Case Co-ordinator USE ONLY

Solicitor Information

*Please note if the Agency is paying for legal representation then invoices should be sent monthly for the attention of the Corporate Services Manager

Counsel Information

^If you do not know whether council will be appointed then a new form must be completed and signed by your manager when council is appointed.

Management Team Reasons for Legal Support Decision

Office Use Only

I authorise the appointment of the solicitor / council [please delete as appropriate] as separate legal representation for the guardian ad litem in this case.

Manager signature: ………………………………………………

Date: ……………………………..

The Line Manager/Case Co-ordinator should sign and pass the form to the Corporate Services Manager.

Actions to be taken

1. The Agency will forward a Form of Undertaking to the guardian who will ask their solicitor to sign that they agree with the terms and conditions during their appointment
2. A copy of the form signed by the solicitor and the guardian should be returned to the Corporate Services Manager.

Separate Legal Representation

Form of Undertaking

In the case of <Child Surname> case reference <Case id>, I hereby agree to act as the legal representative for <Gal name> [Guardian ad Litem].

I agree to the costs as laid down by Legal Aid and will submit my invoice at the earliest possible date

Solicitor Signature:______Date: ______

GAL Signature: ______Date: ______