Availability of children’s legal aid

Legal aid consists of representation by you and, where appropriate, counsel, in any proceedings (including appeals) for which it is available as set out in section 28B of the Legal Aid (Scotland) Act 1986.  It includes all of your assistance or help from counsel in the preliminary steps to proceedings.

Therefore, children’s legal aid cannot consist of representation by a Safeguarder or a curator ad litem even where that person so appointed is a practising solicitor.

Sections 28C to F of the Legal Aid (Scotland) Act 1986 and regulation 5 of the Children’s Legal Assistance (Scotland) Regulations 2013 provide that children’s legal aid is available to:

• a child
• a Relevant person
• deemed relevant person
• a person seeking to be deemed relevant
• a “section 126” individual.

Children’s legal aid is not available to any other persons for proceedings under the 2011 Act.  It is not available to, for example, a Safeguarder appointed by the sheriff to safeguard the interests of the child in the proceedings or a sibling of the child unless that sibling has been deemed a relevant person to the child.

It should also be noted that assistance by way of representation (ABWOR), is also available to a relevant person (and deemed relevant person) for an application to the sheriff for variation or termination of a child protection order in terms of section 48 of the Children’s Hearings (Scotland) Act 2011. It is up to you which form of children’s legal assistance you wish to provide to your client, assuming your client is eligible for either.

Legal aid is available to such persons for certain appeals in the sheriff court, Sheriff Appeal Court and Court of Session in terms of section 28F of the Legal Aid (Scotland) Act 1986.

The appeals are as follows:

• an appeal to the sheriff against a determination of a children’s hearing that an individual is no longer to be deemed to be a relevant person in terms of section 154 of the 2011 Act
• an appeal to the sheriff against a determination of a pre-hearing panel or children’s hearing that your client is not to be deemed a relevant person in relation to a child under section 160(1)(a) of the 2011 Act
• an appeal to the sheriff against a direction that your client is no longer to be deemed a relevant person under section 142 (4a) and section 160(1)(b) of the 2011 Act
• an appeal to the Sheriff Appeal Court or the Court of Session against a decision that your client is not to be deemed a relevant person or quashing a determination that your client is to be deemed a relevant person under section 164(1) of the 2011 Act
• an appeal to the Court of Session against a determination of the Sheriff Appeal Court where the determination is that your client is not to be deemed a relevant person in terms of section 164(2) of the 2011 Act.

A “section 126 individual” means a person to whom section 126(2)(b) or (3) of the 2011 Act applies who:

• is named on a Contact Order which regulates contact between the child and an individual
• is named on a Permanence Order which specifies arrangements for contact between the child and that individual
• claims that conditions specified in an order made by Scottish Ministers are satisfied in relation to that individual

Legal aid is available to such persons for certain appeals in the sheriff court, Sheriff Appeal Court and Court of Session.

The appeals in question are:

• an appeal to the sheriff against a decision relating to a contact or permanence order in terms of section 161 of the 2011 Act
• an appeal to the Sheriff Appeal Court or Court of Session against a decision of a sheriff in an appeal relating to a contact or permanence order in terms of section 165 of the 2011 Act
• an appeal to the Court of Session against a decision of the Sheriff Appeal Court in an appeal relating to a contact or permanence order in terms of section 165 of the 2011 Act.