Applications for a sheriff to a review a finding under section 85 of the Children (Scotland) Act 1995 do not fall under the Children’s Hearings (Scotland) Act 2011. This means a legal aid application for such a court action cannot be submitted to us using our online system.
These reviews, also known as a ‘fresh evidence’ proof, will be extremely rare and will become increasingly rarer in the future.
You have to make an application for legal aid to the sheriff if your client wishes them to review previous established grounds under the 1995 Act. You do not have to be registered to provide children’s legal assistance to make this application as the children’s registration requirements and associated Code of Practice only apply to cases under the 2011 Act.
If your client wishes to make an application to review previous established grounds under the 2011 Act then the application for legal aid is made to us in the usual way.
We will accept a legal aid application for S85 fresh evidence proceedings and arrange for it to be passed onto the appropriate sheriff court for consideration. There are no longer any paper forms for such applications and you cannot submit an online application to us for this. You must instead send us written submissions by secure email (CJSM) to: Childrensla@slab.org.uk.cjsm.net.
Please note this secure email address can only be used by solicitors registered to send CJSM emails. You can find out how to register to use this service at the CJSM website. It would be helpful if you could phone the Children’s Applications Team when you have done this.
You do not have to complete any Declaration form as this application for legal aid is made to the sheriff and is not a Legal Aid Online application made to us.
The written submissions that we will pass onto the sheriff must contain the following –
The sheriff must be satisfied that granting legal aid to the child or relevant person is in the child’s interests. The 1986 Act does not define what ‘the interests of the child’ means or specify any factors to be taken into account in considering this.
We suggest that the following information will assist here:
You should provide full financial information to enable the sheriff to carry out a financial assessment to establish whether the expenses of the S85 proceedings can be met without undue hardship to the child or to any relevant person in relation to them or their dependants.
The information provided should include details of
Please also explain why you think undue hardship would arise should your client have to fund the S85 proceedings themselves.
The sheriff must also be satisfied that your client does not have other rights and facilities available to them that would make it unnecessary for them to get legal aid. They must also be satisfied there is no reasonable expectation of receiving financial or other help from a body of which they or (if a child) any relevant person is a member.
If the sheriff is not satisfied on these matters legal aid must be refused unless there is special reason for making it available. The sheriff may however be prepared to make legal aid available if your client has a reasonable expectation of receiving financial help towards the cost of the case from a body of which they are a member, in which case they must give the sheriff a written undertaking to pay us any sum received from that body.
When we receive written submissions for legal aid we will check that they contain sufficient information. If they do we will pass them to the sheriff clerk, along with a copy of this guidance and ask them to let us know the sheriff’s decision as quickly as possible. We will then telephone you with the decision and follow this up in writing via secure e mail.
When legal aid is granted we will issue you with a unique legal aid reference number and accounts synopsis form to submit with your final account using the current paper process. It will be paid in terms of Schedule 5 of the 1989 Civil Fees Regulations on a detailed fee basis.
It will be your responsibility to advise your client of the sheriff’s decision on the application.
Any subsequent sanction applications under this grant of legal aid should be submitted to us using secure email, quoting the reference number and clearly stating that this is a sanction application in terms of a S85 Application under the 1995 Act.
We will deal with any sanction applications in terms of our guidance on sanction applications set out in our guidance.
Once the S85 application hearing has concluded it is still open to your client to apply to us for legal aid for:
Such appeals are by stated case on a point of law or in respect of any irregularity in the conduct of the case. The appeal may be at the instance of the child or any relevant person. The Reporter may also appeal and the child or relevant person may wish to oppose such an appeal.
It is open to you to submit an application for one of these appeals to us using Legal Aid Online. You must select ‘Appeals (1995 Act)’ from the drop down children’s list of applications types you are presented with.
We no longer have an online declaration form for your client for this type of appeal under the 1995 Act. Please therefore use the CHLA/LAO – 2011 Act online declaration form and make it clear on that this is for a 1995 Act appeal to the Sheriff Appeal Court or Court of Session.
Before we grant legal aid for the appeal we must be satisfied that the statutory tests laid down in S29(5) of the 1986 Act are met and accordingly in the application we will ask for:
For further information on these statutory merits tests you should refer to our guidance about appeals to the Sheriff Appeal Court and Court of Session. We will apply this guidance when assessing such an application.
What happens next
We will assess the application, continue it for further information or grant or refuse it in the same way that we would assess any Legal Aid Online application for an appeal to the Sheriff Appeal Court or Court of Session under the 2011 Act.
We will issue you with a unique legal aid reference number and accounts synopsis form oif legal aid is granted for you to submit your final account using the current paper process. It will be paid in terms of Schedule 5 of the 1989 Civil Fees Regulations on a detailed fee basis.
Any subsequent sanction applications under this grant of legal aid can be made to us online under the relevant reference number.
We will deal with any sanction applications in terms of our guidance on sanction applications.