We believe that you, as a registered children’s solicitor, are capable of undertaking the vast majority of children’s cases in the sheriff court which may include appeals before the Sheriff Appeal Court.  We will only sanction junior counsel to be employed in these cases where you can show this is appropriate.

We consider all the circumstances of each individual case.  The existence of a factor or factors will not automatically trigger a grant of sanction but will enable us to make an informed decision on whether or not the employment of counsel is appropriate.

Factors to be considered, and this is not an exhaustive list, include:

  • Whether there is an exceptional difficulty, complexity or novelty involved in the case either in fact or in law.
  • Whether there is any speciality, difficulty or unusual circumstances for a case of this type involved in presenting the case or in examining or cross-examining specific witnesses, report writers and parties to the proceedings.
  • The number, age, character or expertise of the witnesses, report writers and parties to the proceedings to be examined.
  • Significant intellectual impairment of your client which may affect their ability to understand and take part in the court proceedings.
  • The likelihood of a young child or children or vulnerable adult giving evidence in the proceedings and why it would not be considered appropriate for you to examine the child or vulnerable adult, using the vulnerable witness legislation.
  • The number, nature or significance of the productions involved in the case to demonstrate how the use of the productions and/or social work records will lead to added exceptional difficulties or complexities in the preparation of your client’s case.
  • The gravity of the matters raised in the statement of grounds or in any review of the establishment of statement of grounds.
  • Whether all or part of the statement of grounds and/or supporting alleged facts are currently subject to criminal investigation or prosecution of your client and if so, to advise of the stage those criminal proceedings have reached.
  • Whether the proceedings are closely related to current civil proceedings and if the outcome of the proceedings will affect the ongoing civil proceedings.

We will also take into account whether you or another solicitor in your firm has extended rights of audience in considering whether to grant sanction for the employment of counsel.

Counsel being available to another relevant person, individual, or to the child will not of itself mean we will grant counsel to all relevant persons and/or parties.  The circumstances, level of involvement and consequences of a finding may vary and allow other requests to be distinguished.

 

Other considerations we make when deciding sanction for junior counsel

We will not, generally, consider the following to be factors in support of counsel:

  • Where non accidental injuries are alleged to have been inflicted and this has not been investigated further by you. We expect preliminary investigations to be carried out and do not generally consider that counsel is needed to help you with the instruction of medical experts to explain, confirm or refute the Reporter’s medical evidence nor to begin preparing the case should ask us for sanction to instruct medical experts initially.
  • The need simply to lead evidence of an expert witness or witnesses, without reference to other salient circumstances.
  • Cross-examination of social workers, health visitors, teachers, education welfare officers, nurses and doctors, including general practitioners, as we would not normally consider this to be beyond your competence.
  • The likely length of the court hearing, proof of appeal – we expect a solicitor who takes on work of this nature to be able to set aside the appropriate time to prepare and to conduct the case.  You should consider the question of resources at the outset of a case when deciding to accept instructions and then throughout the progress of the case.
  • The need to take evidence through an interpreter without reference to other salient circumstances.
  • The fact that vulnerable witness applications and/or child witness notices have been lodged without reference to other salient circumstances.

Where a case is likely to require cross-examination of another solicitor practising in the same locality, or of a children’s reporter, panel member, justice of the peace or sheriff or other court or other children’s hearing official, we will give a request for counsel sympathetic consideration.  However, you should address why you accepted instructions in this case and why it is not appropriate or possible to transfer the case to another firm or solicitor outwith the jurisdiction.  You must also show that the evidence to be adduced is not merely formal in nature.

Personal circumstances

Applications for sanction may refer to your own particular circumstances.

For instance, possible reasons you may be seeking counsel could be:

  • If you cannot attend a diet personally because of exceptional personal, business or professional circumstances.
  • If you cannot deal with a case because of sudden illness, or because a partner or key member of staff has died or become ill.
  • If there is no experienced local bar.

In the situations outlined above you should:

  • Tell us what other arrangements you have tried to put in place and how the client may be prejudiced if counsel does not represent them in your absence.
  • Address what arrangements are to be put in place so that counsel, if sanctioned, can be appropriately instructed while attending court.

If you have not made any attempt to make alternative arrangements to represent your client, or the difficulty has arisen simply because of a clash of dates, then it is unlikely that we will grant sanction for counsel.

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