Statutory criteria for legal aid for appeals under the 2011 Act to the Sheriff Appeal Court and Court of Session where your client is a child

In terms of section 28D(5) of the Legal Aid (Scotland) Act 1986 we must be satisfied –

• That it is in the best interests of the child that children’s legal aid be made available.
• That it is reasonable in the particular circumstances of the case that the child should receive children’s legal aid.
• That, 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.
• That the child has substantial grounds for making or responding to the appeal.

If your client was in receipt of legal aid for the original proceedings:

• You will be asked for the legal aid reference number of that case.
• Once verified , your client will still be considered to be financially eligible for the appeal proceedings and no further financial assessment will be required.

If your client was not in receipt of legal aid for the proceedings which are now the subject of the appeal:

• A full financial assessment is needed. You will require to give us full information on the application form to enable us to carry out a financial assessment to establish whether expenses of the case can be met without undue hardship to your client. We do not take into consideration your client’s parents or carers resources when we make this financial assessment.

General points to note:

• If a grant of children’s legal aid is deemed detrimental to the child’s welfare, we may refuse it on this basis.
• If a child is not old enough or capable enough to directly instruct you, we will always take into consideration whether it is in the best interests of the child to have legal representation in the appeal as well as a safeguarder or curator ad litem.

You must satisfy us that it is reasonable in the particular circumstances of the case that the child should receive legal aid.

Some of the factors in considering reasonableness include:

• If the outcome of the appeal would materially affect the child and, if so, in what way.
• If the outcome of the appeal could materially affect other proceedings relating to the child such as ongoing criminal or civil proceedings.

This is not exhaustive of the issues we will take into account so you should draw to our attention any matters you consider to be relevant and you want us to consider

For appeals from the sheriff against children’s hearings decisions, the Opinion of the Sheriff Appeal Court in the case of NR V Roma Bruce-Davies 2018 SAC Civ 13 is taken into consideration by us when assessing reasonableness. In this case the Sheriff Appeal Court stated that ‘An appeal against a sheriff’s decision on an appeal from a children’s hearing should be an exceptional event because there is a right for the child or relevant person to require a review of the original decision after three months. It is likely to take far longer to appeal than to ask for another decision by the children’s hearing. It follows that a second appeal will rarely represent a sound use of public funds’. The Court said ‘We would add that we would expect this type of appeal to be a rare procedure. Future appeals should receive robust and careful consideration by lawyers and funders alike’.

We consider all the circumstances of each individual application. Just because legal aid has been granted to another party in the appeal does not mean that we will grant legal aid to your client. You need to show us that it is reasonable for your client to receive legal aid.

If this is a first instance appeal from the sheriff and you want to appeal directly to the Court of Session you have to tell us why you have decided to do this rather than go to the Sheriff Appeal Court whose decision is binding on all sheriffdoms.

Factors to support an appeal directly to the Court of Session, bypassing the Sheriff Appeal Court, could include:

• Significant complexity and/or novelty in the appeal proceedings either in fact or in law.
• A conflict of authorities to be resolved at a higher level.
• If the outcome of the appeal would have wider implications for other unrelated cases and/or children’s hearing and court related proceedings in general.

You must also satisfy us that the child has “substantial grounds” for making or responding to the appeal, by providing evidence of the existence of such grounds. You should remember that is a high test. Simply stating on the application form that “substantial grounds exist” will be insufficient to establish this statutory test.

You must explain in detail:

• What the proposed substantial grounds are
• Why you have reached the conclusion that they exist
• Why you consider that the sheriff or Sheriff Appeal Court erred in law and/or why you consider that there has been a procedural irregularity
• Why you should respond to these assertions if made by another appellant

Our view is that to show that substantial grounds exist you must show that the grounds of appeal or reasons to respond to them:

• Are more than merely stateable
• Have real merit or prospects of success

As noted in the case of JS V MULROONEY 2014 CSIH 70 at paragraph 36, ‘the appellate court in a stated case appeal is not a court of review.’

Actual errors of law need to be identified in any application for legal aid and a vague reference to a breach of Convention rights will not meet this test. The Opinion of the Sheriff Appeal Court in NR V Roma Bruce-Davies 2018 SAC Civ 13 stated that ‘Convention rights are not designed as a licence to side step statutory grounds of appeal, or as an incantation to justify endless dispute on the facts’