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

A relevant person has the meaning given in section 200 of the Children’s Hearings (Scotland) Act 2011 and includes a person deemed to be a relevant person as detailed in sections 81(3), 160(4)(b) or 164(3)(a) of the 2011 Act.

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

• it is reasonable in the particular circumstances of the case that they should receive children’s legal aid, and
• after consideration of the disposable income and disposable capital of the relevant person, the expenses of the case cannot be met without undue hardship to them.

You should provide full financial information on the online application form to enable us to carry out a financial assessment. This helps us to establish if the expenses of the case would cause undue hardship to your client.

The reasonableness test provides us with a very wide discretion. To allow us to assess the reasonableness of an application from a relevant person or deemed relevant person you need to tell us:

• that there is a clear basis for their involvement in proceedings with the assistance of legal representation rather than a non-legal representative
• whether the applicant has another person representing their interests in the proceedings (for example, a curator ad litem)
• how the outcome of the court proceedings will specifically and materially affect the applicant.

If we have granted legal aid to another party in the proceedings, including the child, this will not mean legal aid will be granted to your client. You will still need to satisfy us that it is reasonable for this to happen.

S101 Statement of Grounds proof under the 2011 Act

If the legal aid application concerns a Statement of Grounds proof in terms of S101 of the Children’s Hearings (Scotland) Act 2011 you need to tell us:

• your client’s position in relation to the Statement of Ground(s)
• your client’s position on the alleged supporting facts
• the extent of the client’s actual involvement in the alleged supporting facts
• if and how your client’s position differs to the child and/or other relevant person or person’s position
• why you consider it is reasonable for your client 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 applicant. 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 your client 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 the relevant person’s position is in relation to each Statement of Ground and each alleged supporting fact.

If the application for legal aid is for a S101 proof, you also need to set out the extent of your client’s involvement in the allegations made by the Reporter in the Statement of Grounds themselves and also the alleged supporting Statement of Facts.

If the Statement of Grounds alleges that a child has committed a criminal offence out with the applicant’s presence and the child has children’s legal aid to dispute these grounds in court, you will have to provide sufficient information to persuade us that it is reasonable for your client also to receive representation from public funds in relation to the Statement of Grounds in which they are not directly involved. It is important to remember that the sheriff’s role is to find the Statement of Grounds established or not. If the sheriff finds the Statement of Grounds established then they will remit the matter back to the children’s hearing which will then make the substantive decision regarding compulsory measures of supervision.

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 client 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 your client 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 client was opposing the Reporter’s application and had submissions to make.

Regulation 6(3) of the Children’s Legal Assistance (Scotland) Regulations 2013 states that these extension or variation hearings do not require a separate application for children’s legal aid where your client 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. This is because it is not reasonable to grant legal aid when your client can seek legal aid for the ongoing proceedings, which would then incorporate representation at these extension or variation hearings. At the accounts stage you would need to be able to show that your client opposed or wished to seek variation of its proposed terms. If a separate grant of legal aid was made then this could result in your client having to pay a second contribution.

If the relevant person or deemed relevant person:

• 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 need to satisfy us that it is reasonable for the client to be represented in these court proceedings.

In an application for legal aid we need to know:

• the client’s position on the Report’s application to extend or vary the ICSO.

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

• 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 legal aid application concerns an appeal against a children’s hearing decision under the 2011 Act then we need to know:

• who has made the appeal
• what the appeal concerns
• on what basis the client 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 you are acting for the appellant, you need to satisfy us that:

• it is a reasonable appeal to make with reasonable prospects
• it is not frivolous or vexatious
• legal representation, as opposed to non-legal representation, is required
• the outcome of the appeal will specifically and materially affect the applicant.

If you are acting for the respondent, you need to satisfy us that:

• it is reasonable to receive representation from public funds to respond to the appeal
• legal representation, as opposed to non-legal representation, is required
• the outcome of the appeal will specifically and materially affect the applicant.

It may be difficult to demonstrate that it is reasonable for legal aid to be granted where your client supports the terms of the appellants appeal and/or where any successful appeal would not have any material effect on your client.

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.

Application for a review of a grounds determination in terms of S110 of the 2011 Act

These S110 review applications are often referred to as “fresh evidence proofs”. If you represent a relevant person, or someone who was at the time the grounds were established a relevant person, who is seeking the review of the grounds determination, then in the legal aid application we need to know:

• the nature of the evidence that you now have to persuade the sheriff that the grounds, previously established, should be recalled
• that the sheriff did not take this evidence into account when the original grounds were held to be established
• if the evidence had been available in the original proceedings then it would have been admissible
• whether there is a reasonable explanation for the failure to lead that evidence before the original grounds determination was made
• whether the evidence is significant and relevant to the question of whether the grounds determination should have been made
• 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
• that the prospects of the applicant successfully having the grounds recalled or discharged are reasonable.

In such an application, 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 evidence that you now have in support of the application such as a report and/or precognition by an expert medical witness
• an explanation of the material outcome for your client if the review is successful (even if that person is no longer a relevant person)
• if the client is being represented by a curator ad litem, an explanation as to why it is reasonable to be represented by a solicitor in addition to this.

We can check from the Statement of Grounds that you provide to make sure that they have been established under the 2011 Act and not the 1995 Act.

If your client seeks to review Grounds that were established under the Children (Scotland) Act 1995, then they cannot seek a review of them under the Children’s Hearings (Scotland) Act 2011. 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. You can also contact us for assistance and guidance.

Where the client wants to respond to a child’s or other relevant person’s S110 application for review (even where that person is no longer a relevant person in relation to that child but was at the time the Grounds were held established) under the 2011 Act

If you represent a client who is seeking to respond to a review of the grounds determination under the 2011 Act then in the legal aid application we need to know:

• 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
• whether the client agrees or disputes the application for a review
• the material outcome for your client if the review is successful or refused
• if the client is being represented by a curator ad litem, why it is reasonable to be represented by a solicitor in addition to this.

You must also provide:

• A copy of intimation of the application and/or court interlocutor confirming that an application has been made by the child (even if no longer a child) or another relevant person (even if no longer relevant to the child).

If the client agrees with the other party’s application for the review, it is unlikely that the reasonableness test will be met unless:

• there are other factors present in the case that could still make this reasonable.