Civil legal aid application by or on behalf of children: assessing ‘general understanding’ of instructing a solicitor

A “child” is a person under the age of 16 years [regulation 2 Civil Legal Aid (Scotland) Regulations 2002].  Where a child is a party to civil proceedings, an application for legal aid may be made on their behalf by

• Any person with parental responsibilities in relation to them
• Any person in whose care they are
• A person acting for them for the purpose of any proceedings, for example, a curator ad litem.

The child may, however, be entitled in certain circumstances to apply for legal aid in their own name, in which case we will accept an application in name of the child alone.

If you are consulted on a civil matter relating to a child you must form a view about their general understanding of what it means to instruct you on any civil matter.

• If you consider that an individual child under 12 does have such a general understanding, you may feel able to accept instructions from the child, who will also, of course, have legal capacity to sue, or to defend, in any civil proceedings.
• You may consider that an individual child of 12 or more does not have a general understanding of what it means to instruct you. If so, the presumption otherwise applying in the case of a child of that age will in effect be rebutted.  In that event, you should look to a parent or guardian or other responsible person for instructions and for title to sue or defend on behalf of the child.