Statutory criteria for legal aid for 2011 Act appeals to the Sheriff Appeal Court and Court of Session where your client is a relevant person/deemed relevant person

A relevant person is a person deemed to be a relevant person by virtue of sections 81(3), 160(4)(b) or 164(3)(a) of the Children’s Hearings (Scotland) Act 2011.

Before we grant legal aid to the relevant person/deemed relevant person for an appeal to the Sheriff Appeal Court or Court of Session under the Children’s Hearings (Scotland) Act 2021, we must be satisfied that:

• the relevant person has substantial grounds for making or responding to the appeal
• it is reasonable in the particular circumstances of the case that the relevant person should receive legal aid
• 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 the relevant person.

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.

If your client was not in receipt of legal aid for the original proceedings:

You require to give us full information on the online application form to enable us to carry out a financial assessment to establish whether the expenses of the case can be met without undue hardship to your client.

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

The reasonableness test provides us with a very wide discretion so it is impossible to give an exhaustive list of circumstances in which questions of reasonableness may apply. However, you should draw to our attention any issues that you think are relevant for us to consider.

Some of the factors which we will consider when assessing the reasonableness include:

• how the outcome of the appeal might materially affect your client
• how the outcome of the appeal might materially affect the child or children
• if the outcome of the appeal could materially affect other proceedings relating to your client or the child such as ongoing or proposed criminal or civil proceedings.

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, or the Reporter has appealed, will not, of itself, mean that we will pass the reasonableness test in relation to your client’s application.

If this is a first instance appeal and you have decided to proceed with the appeal directly from the sheriff to the Court of Session rather than to the Sheriff Appeal Court whose decision is binding on all sheriffdoms then you will need to say why you have done this.

Factors to support an appeal directly to the Court of Session 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 high level.
• If the outcome of the appeal could materially affect other unrelated cases and/or children’s hearings and court related proceedings in general.

You must also satisfy us that the relevant person has “substantial grounds” for making or responding to the appeal, by pointing to the existence of such grounds. You should remember that is a high test. Simply stating in the application that “substantial grounds exist” will be insufficient to pass this statutory merits 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 made by the appellant where you are seeking legal aid to respond to another person’s appeal.

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 strong 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 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’