Statutory criteria for legal aid for sheriff court proceedings under the Children’s Hearings (Scotland) Act 2011 where your client is a child

Before we grant legal aid to a child for sheriff court proceedings under the Children’s Hearings (Scotland) Act 2011 we must, in terms of section 28(3) of the Legal Aid (Scotland) Act 1986, be satisfied that:

• it is in the best interests of the child
• it is reasonable in the particular circumstances of the case
• after consideration of the disposable income and disposable capital of the child, the expenses of the case cannot be met without undue hardship to the child.

You must give us full information in the application to enable us to carry out a financial assessment. This will help us to establish whether expenses of the case can be met without undue hardship to the child. We do not take the child’s parents’ or carers’ resources into account for these applications.

In an application for legal aid we need to know that the child:

• has instructed you directly and
• wants to take part in the proceedings.

Where the child is old enough to directly instruct you and asks you to make an application on their behalf for children’s legal aid it will be apparent that they want to take part in the proceedings which are all about them, so this will satisfy this test for proceedings under the Children’s Hearings (Scotland) Act 2011.

You must also satisfy us that it is reasonable in the particular circumstances of the case that the child should receive legal aid for proceedings under the Children’s Hearings (Scotland) Act 2011. The reasonableness test provides us with a very wide discretion.

Where it can be shown that the best interests test is met and that the child has specifically stated that they wish to attend court to take part in the proceedings that are all about them then the reasonableness test will usually be met.

There are however some exceptions to this, as laid out in the sections below, which depend on the type of proceedings in question.

S101 Statement of Grounds Proof under the 2011 Act

If the application concerns a Statement of Grounds proof, you need to tell us about:

• the child’s position in relation to the overall Statement of Ground(s)
• the child’s position in relation to the alleged supporting facts
• if and how the child’s position differs to the relevant person or person’s position
• if the child has specifically advised you that they wish to take part in the proceedings
• if the child has asked you to attend court on their behalf
• why you consider it is reasonable for the child to receive legal aid to dispute or accept some or all of the Grounds and alleged facts in court.

You are always required to upload the Statement of Grounds and advise us what is disputed and/or accepted by the child. Handwritten notes on the Statement of Grounds are not a substitute for telling us specifically what is disputed and/or accepted as these may not reflect the current position of the child or may apply to another party.

In order to avoid any unnecessary continuations or refusals please ensure that, in response to the reasonableness question on the application, you specifically address what your client’s position is in relation to each Statement of Ground and each alleged supporting fact.

You should also tell us:

• if and how your client’s position differs to the relevant person’s position
• if they have no conflict of interest with another party to the proceedings, explain why it is reasonable for them to have separate legal representation.

If they have the same position and there is no conflict of interest demonstrated between them then you will require to give us sufficient information to satisfy us that it is reasonable they have separate legal representation.

Where the child accepts the statement of Grounds

If your client:

• accepts the Statement of Grounds,
• accepts the alleged supporting facts, and
• still wishes to be represented in court

then you will be required to advise us why you conclude that representation of the child is reasonable given that they will not have anything to refute and/or evidence to put forward and that they can always take someone else with them to the court for support. It is the Reporter’s role to establish the Statement of Grounds and alleged supporting facts and not the child’s. If your client accepts the Grounds in full they may prefer simply not to attend the court process but rather attend the hearing instead as it is the hearing that will make decisions about any Compulsory Supervision Order for them. A child’s attendance in court can be excused by the sheriff and if they are not called to give evidence by the Reporter or any other party they do not necessarily require to be present.

Application to the sheriff to extend/further extend or vary/further vary an interim compulsory supervision order under S98 or 99 of the 2011 Act

If the child already has legal aid for the S101 proof or is still to apply for this then you do not require to submit a further legal aid application where the Reporter seeks to extend or vary any interim compulsory supervision order (ICSO) in place in relation to the child. If you wish to represent the child at any of these hearings then you can charge for this under the legal aid certificate for the S101 proof subject to the scrutiny of our Accounts Assessment Department. You will require to demonstrate that the child was opposing the Reporter’s application and/or had specifically stated that they wanted to attend the court hearing in question.

In terms of Regulation 6(3) of the Children’s Legal Assistance (Scotland) Regulations 2013 these extension or variation hearings do not require a separate application for children’s legal aid where the child has already been granted or has still to make an application for children’s legal aid for other distinct proceeding listed in Regulation 6(2) which are still ongoing. If you apply for legal aid, and it is apparent that there are other proceedings ongoing, it is likely that we will refuse the application on the basis that it is not reasonable to grant legal aid when the child can seek legal aid for the ongoing proceedings which would then incorporate representation at these extension or variation hearings. You will need to show at the Accounts stage that the child opposed or wished to seek any variation of its proposed terms.

If the child:

• has had legal aid refused for the S101 proof, or
• does not wish legal aid for the S101 proof,

then a legal aid application can be submitted for such an ICSO extension/variation hearing
and you require to satisfy us that it is reasonable for the child to be represented in these court proceedings.

In an application for legal aid for an ICSO extension/variation hearing we need to know:

• that the child does not already have legal aid for the related proceedings , usually a S101 proof, or that those proceedings have concluded
• if the child opposes the Reporter’s application to extend and/or vary the ICSO and, if so, on what basis
• if another party opposes the Reporter’s application
• if the child has expressed a wish to attend court and take part in the proceedings which directly relate to them
• if you have any other information to demonstrate that it is reasonable for the child to receive legal aid even where they do not oppose the Reporter’s application.

If the child agrees with the application to extend or vary their ICSO, it is unlikely that the reasonableness test will be met unless:

• the child has told you that they want to attend court
• there are other factors present in the case that could still make this reasonable.

Part 5 of Practice Note no 1, 2018 for the Sheriffdom of Glasgow and Strathkelvin should be noted here which states that there is no requirement for any party other than the children’s Reporter to attend such a hearing in person, or to be represented at such a hearing unless your client :

• opposes the extension of the order in the terms sought by the Reporter
• wishes to seek any variation of its proposed terms.

Section 154 appeal against a children’s hearing decision under the 2011 Act

If the application concerns an appeal against a children’s hearing decision then we need to know:

• who has made the appeal
• what the appeal concerns
• on what basis the child wants to appeal or respond to the appeal
• why you consider the decision of the hearing or pre hearing panel was or was not justified in all the circumstances of the case.

If the child is the appellant, you need to satisfy us that:

• it is a reasonable appeal to make and
• it is not frivolous or vexatious and
• the prospects of the child successfully appealing the decision are reasonable.

If the child is the respondent, you will also need to satisfy us that it is reasonable for them to receive representation from public funds to respond to the appeal in question.

If the child agrees with the appellant’s appeal, it is unlikely that the reasonableness test will be met unless:

• the child has told you that they want to attend court to take part in the appeal which directly concerns them, or
• there are other factors present in the case that could still make this reasonable.

If the Grounds of Appeal are available to you when you make an application for legal aid to respond to an appeal, you should submit them. This will avoid any continuations of the application and ensure a quicker decision.

Review of a grounds determination in terms of S110 of the 2011 Act

Your application may concern a review of a grounds determination – what is often referred to as a “fresh evidence proof”. If you represent your client who is seeking the review of the grounds determination you need to:

• provide details of the evidence that you now have in support of such an application to persuade the sheriff that the grounds should be recalled
• confirm that the sheriff did not take this evidence into account when the original grounds were held to be established
• confirm that if the evidence has been available in the original proceedings then it would have been admissible
• provide a reasonable explanation for the failure to lead that evidence before the original grounds determination was made
• show that the evidence is significant and relevant to the question of whether the grounds determination should have been made.

You must also advise if the application has been made to the sheriff as yet and if it has, to confirm that the sheriff has not dismissed the application. We will not be able to proceed any further with legal aid if the sheriff has dismissed the application at this first stage.

You must provide:

• the Statement of Grounds and supporting facts that you are seeking now to challenge
• any supporting information that you have regarding the new evidence such as a report and/or precognition by an expert medical witness
• the material outcome for the child (even if that person is no longer a child) if the review is successful.

We will require sight of the Statement of Grounds to ensure that they have been established under the Children’s Hearings (Scotland) Act 2011 and not the Children (Scotland) Act 1995.

If your client seeks to review Grounds that were established under the Children (Scotland) Act 1995, then you cannot seek a review of them under the 2011 Act. In this circumstance, the client will require to seek a review under S85 of the 1995 Act.

There is a guidance note available on our website here if they seek legal aid for this.  You can also contact us for assistance and guidance.

Where the child wants to respond to a relevant person’s S110 application under the 2011 Act for review (even where that person is no longer a relevant person in relation to that child)

Where this occurs, then in terms of S112 of the 2011 Act, the child has a duty to attend this review hearing unless they have been excused by the sheriff.

If you represent a child who is seeking to respond to a review of the grounds determination then in the legal aid application you need to tell us:

• if the application has already been made to the sheriff and been dismissed – we will not be able to proceed any further with legal aid application if the sheriff has dismissed the application at this first stage
• if the child has been excused from attending the hearing under S112
• if the child wants to take part in the proceedings
• whether the child agrees or disputes the application for a review.

You must also provide:

• A copy of intimation of the application and/or court interlocutor confirming that an application has been made by another party.

If the child agrees with the relevant person’s application for the review, it is unlikely that the reasonableness test will be met unless:

• the child has told you that they want to attend court to take part in the review which directly concerns them or
• there are other factors present in the case that could still make this reasonable.